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Published online by Cambridge University Press: 24 January 2025
It has been clearly established in the common law world for a long time that foreign penal and revenue laws are unenforceable in a forum court. Dicey and Morris state the rule thus: “English courts have no jurisdiction to entertain an action for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State”. While the first two categories of foreign laws are well established, there is considerable doubtt outside of Australiat as to whether the third residual category of “public laws” can be justified.
The High Court in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (which will be referred to in this article as “Spycatcher”), was called on to decide whether it would allow a claim of the British Government to be heard in Australia. One of the arguments raised against allowing the action to go ahead was that it would potentially involve an Australian court enforcing a foreign penalt revenue or other public law. In the course of rendering its decisiont the Court reformulated the principles stated above into a broader principle. The Court stated that Australian courts will not enforce the “governmental interests” of a foreign sovereign. By this, the Court meant “the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government”. This rule or principle will be referred to, in this paper, as the “non-enforcement principle”.
Lawyer with the WA Regional Office of the Australian Securities Commission.
1 Authority against the enforcement of foreign penal laws goes back at least as far as the case of Folliott v Ogden (1789) l H Bl 123; 126 ER 75. The comparable rule against foreign revenue laws is at least as old. For example, in 1928 Tomlin J said “[i]t seems to be plain that at any rate for somewhere about 200 years, since the time of Lord Hardwicke, the judges have had present to their minds the notion, and have repeatedly said that the Courts of this country do not take notice of the revenue laws of foreign States”: In re Visser [1928] l Ch 877, 881-2.
2 Collins, L (ed), Dicey and Morris on The Conflict of Laws (11th ed 1987) Vol 1, 100Google Scholar.
3 The position in England is unclear. In Attorney-General (NZ) v Ortiz (1984] AC 1 the Court of Appeal was divided as to whether such a “residual” category existed. Subsequent House of Lords decisions in that case (1984] AC 35, and in Williams and Humbert Ltd v W & H Trademarks (Jersey) Ltd (1986] l AC 368 have not clarified the position. The principle against the enforcement of foreign “political” or “public” laws has never been applied in the United States; see A Ehrenzweig, Private International Law 1967 (General Part), 164.
4 (1988) 165 CLR 30.
5 It is not proposed to discuss the facts of the case in detail. For analysis and criticisms of the case see generally, Howard, M, “Spycatcher Downunder” (1989) 19 UWAL Rev 158Google Scholar; Mann, F A, “Spycatcher in the High Court of Australia” (1988) 104 LQR 497Google Scholar; Carter, P B, “Transnational Recognition and Enforcement of Foreign Public Laws” (1989) 48 Cambridge LJ 417CrossRefGoogle Scholar.
6 Supra n 4, 42.
7 Supran 4.
8 Care should be taken with this expression because the meaning ascribed to it by the High Court is by no means universal. In the United States, the notion of a government's interests has been used as a tool for deciding between competing statutes of different states; see Alaska Pac rs Association v Industrial Accident Commission of the Stale of California 9 (1935) 294 us 532.
9 Supra n 4, 42.
lO In some of the cases the classification of the foreign law concerned has been attended by a certain artificiality. For example, in Metal Industries (Salvage) Ltd v Owners of the ST “Harle” [1962] SLT 114 the Court held that a claim by the French government for an employer's contributions to a state health insurance and family benefits scheme was a claim for the enforcement of a French revenue law. By so classifying the action the Court was able to bring the action within the rule against the enforcement of foreign revenue laws.
11 Unless otherwise stated, a reference in this paper to one or all of the Australian states includes the Territories.
12 The writer has no particular preference for the expression of “private international law” over that of “conflicts of laws”. However, “private international law” has been used, in general, in this paper in recognition of the fact that the origins of this area of law, and the bulk of its developments, were in response to the laws of other nations. This is in line with the views of Ehrenzweig, A, “Interstate and International Conflicts Law: A Plea for Segregation” (1957) 41 Minnesota L Rev 717, 718Google Scholar n 8. However, this is by no means a universal view, as others have argued that the history of private international law or conflicts of law is in inter-provincial conflicts within loose federations; see E Cheatham, “A Federal Nation and Conflict of Laws” (1950) 22 Rocky Mountain L Rev 109, 110, and A Du Bois, “The Significance in Conflict of Laws of the Distinction Between Interstate and International Transactions” (1933) 17 Minnesota L Rev 361, 361-2.
13 (1988) 169 CLR 41.
14 (1991) 174 CLR 1.
15 Cowen recognised this as he said in the context of the full faith and credit provision of the Constitution “[t]his involves high policy considerations which tum principally upon the inter-relation of the component pans of the Australian federal structure”: Cowen, Z, “Full Faith and Credit The Australian Experience” (1952) 6 Res Judicatae 27, 50Google Scholar.
16 Supra n 13.
17 Supra n 14.
18 Estabrook, “Rorer on Inter-state Law” (2nd ed 1893), 12.
19 Supra n 13.
20 Supra n 14.
21 Supra n 13.
22 Supra n 14.
23 The Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd (1947) 74 CLR 375,396.
24 Pedersen v Young (1964) 110 CLR 162, 170.
25 See Koop v Bebb (1951) 84 CLR 629; Kay's Leasing Corp v Fletcher (1964) 116 CLR 124; and Anderson v Eric Anderson Radio and 1V Pty Ltd (1965) 114 CLR 20.
26 Anderson v Eric Anderson Radio and 1V Pty Ltd (1965) 114 CLR 20.
27 L K Murphy, QC, had argued that s 118 of the Commonwealth Constitution and s 18 of the State and Territorial Records Recognition Act I901 (Cth) were relevant to the choice of law to be applied to the tortious claim.
28 Supra n 25, 45.
29 The writer, in earlier drafts, used the USSR as an example of a country foreign to Australia, but events have rather overtaken the reference.
30 Dunphy J made a similar observation in Permanent Trustee Co (Canberra) Ltd v Finlayson and Ors (1967) 9 FLR 424. It is cited below. The writer recognises that how odd the notion will appear to Australians may well depend to a large part on the season in which the notion is puL It is the speculation of the writer (untested, except anecdotally) that during summer this notion will appear oddest to Australians.
31 A striking example of this occurred in Huntington v Attrill (1892) 146 US 657. The United States Supreme Court considered a suit brought in a Maryland court to enforce a New Yorlc judgment obtained pursuant to a New York statute. The Supreme Court considered whether the New Yorlc judgment was based on a penal statute, because of the principle that a court will not enforce the penal laws of another country. In adopting this approach the Supreme Court expressly followed the reasoning of the Judicial Committee of the Privy Council in the case of the same name (see [1893] AC 150), even though the Judicial Committee had been considering the enforceability of the same New York judgment in Ontario, Canada. The Judicial Committee in this case relied upon the United States Supreme Court decision in State of Wisconsin v Pelican Insurance Co of New Orleans (1888) 127 US 265, which concerned an interstate conflict. There was thus complete interchangeability with an interstate decision being applied to an international conflict decision and that international decision then being applied to an interstate decision. Query whether Huntington v Attrill now represents the law in the United States following the Supreme Court cases of Fauntleroy v Lum (1908) 210 US 230 and Milwaukee County v ME White Company (1935) 296 us 268.
32 See The Bank of Augusta v Earle (1839) 10 Led 274; Dunlap v Rogers (1867) 93 Am Dec433; Bond v Hume (1917) 243 US 15.
33 Bond v Hume (1917) 243 US 15. A notable exception to this is the judgment of MKinley J who dissented in The Bank of Augusta v Earle (1839) 10 Led 274. His Honour found that comity was inapplicable to an inter-state situation. This was because it was a principle of international law, and the states had no national personality or power remaining as they had conferred such power on the Federal Government by the Constitution (ibid 598). Whether or not his Honour would have rejected the application of all private international law rules to interstate situations is, of course, a moot point. Arguably, from this judgment, M'Kinley J may well have allowed more “domestic” private international law rules to apply between the states.
34 Supra n 13.
35 Although this may not be a desirable thing, as it has been observed that “[i]t is commonplace to remark, that the variety of factual circumstances and issues brought within the general category of tort, make a single, rigid choice of law rule inappropriate to the resolution of all cases concerning foreign torts”: V Kerruish, “Actions Concerning Inter-State Torts: Recent Developments in Australian Conflicts Law” (1985) 16 UWAL Rev 64, 65. See also the criticisms of the new rule by M Pryles, “The Law Applicable to Interstate Torts : Farewell to Phillips v Eyre?” (1989) 63 ALJ 158, 175-6. The choice of law rules for conflicts within Australia have been now affected significantly by the operation of the cross-vesting scheme.
36 Eg the issue of s. 118 of the Constitution was raised early on the first morning of argument by Deane J; see page 29 of the Transcript for the 6th of August, 1987. The parties argued the matter before the High Court for a day. The High Court then indicated it would attempt to resolve the case without recourse to the Constitution which would necessitate “bringing in” the states and the Commonwealth; see page 72 of the Transcript for the 6th of August, 1987. However, the Court felt unable to do so and when argument in the case recommenced on the 1st of December, 1987, the Commonwealth, all states (except Tasmania) and the Northern Territory were represented.
37 The Fourth Sir Leo Cussen Memorial Lecture (1990) 6 Australian Bar Review 185.
38 The question was important in this case because the Motor Accidents (Compensation) Act 1979 (NT) significantly restricted the right of a Plaintiff to recover for certain losses. At the relevant time there was no such restriction on recovery under Victorian law. Since then a similar scheme has been introduced into Victoria; see Transport Accident Act 1986 (Vic).
39 See Byrnes v Groote Eylandt Mining Co Pty Lid (1990) 93 ALR 131 (special leave to the High Court denied 11 May, 1990). In this case the Plaintiff sued his employer in New South Wales in tort for injuries he suffered in the Northern Territory. The Court unanimously held that Breavington was authority that the lex loci delicti should be applied, although the Court of Appeal could not extract a single reason from the High Court as to why this should be so; see also Waterhouse v ABC (1989) 86 ACTR 1, 19; Amor v MacpakPty Lid (1989) 95 FLR10, 12-3; Anglo-Australian Foods v Von Planta (1988) 20 FCR 34, 38-9.
40 Supra n 14.
41 ff the South Australian limitation period had been applied the Plaintiffs case would have been statute barred. The South Australian limitation period was found in the Limitation of Actions Act 1936 (SA) and the Workers' Compensation Act 1971 (SA).
42 Supra n 13.
43 Supra n 14.
44 Supra n 13.
45 Supra n 14.
46 Supra n 13.
47 S 118 of the Constitution provides: “Full faith and credit shall be given. throughout the Commonwealth to the laws, public Acts and records, and the judicial proceedings of every State”.
48 This Act will be referred to as “the Recognition Act” for the balance of this paper. Section 18 of the Act provides: “All public acts records and judicial proceedings of any State or Territory, if proved or authenticated as required by this Act, shall have such faith and credit given to them in every court and public office as they have by law or usage in the Courts and public offices of the State or Territory from whence they are taken.”
49 Breavington supra n 13, 80 per Mason CJ; 93,95 per Wilson and Gaudron JJ; 114 per Brennan J; 148 per Dawson J; 163-4 per Toohey J. Mason CJ, Wilson J and Gaudron J were of the view that s 118 could not be a self-executing command to accord “full faith and credit” because of the presence in the Constitution of s 51(25). The other judges did not comment on this.
50 Ibid, 80 per Mason CJ; 94-5 per Wilson and Gaudron JJ; 115 per Brennan J; 150, 166 per Toohey J.
51 Breavington, supra n 13, 150.
52 Supra n 13.
53 It is difficult to comment on whether the judgment of Mason CJ in Breavington would support a residual “flexibility exception”, such is present in the judgment of Lord Wilberforce in Chaplin v Boys [1971) AC 356. From the judgment, however, one gains the impression that Mason CJ may be of the view that the need for such a “flexibility exception” within Australia will be extremely limited.
54 Supra n 13, 79.
55 lbid 78.
56 Supra n 14 at 19.
51 Supra n 13.
58 Supra n 13.
59 lbid 85.
60 lbid 9S.
61 Ibid 98. This use by their Honours of s 118 of the Constitution is reminiscent of Maries J in Borg Warner (Australia) Ltd v Zuppan (1982] VR 437,461 where his Honour said “(t]hese [full faith and credit] provisions either singly or cummulatively cannot in my view be construed as a constitutional or legal mandate to the States to apply each others” laws .... However the mandate enshrines linchpin policy of Federation, that the States and Territories of Australia, whilst sovereign, are fused in one nation, with transcending identity and mutuality of interests.”
62 Supra n 13, 98.
63 Ibid 121.
64 Ibid 125.
65 Ibid 136.
66 Supra n 14.
67 Id.
68 Supra n 13.
69 Ibid 107 per Brennan J; see also 142 per Dawson J.
70 Supra n 25.
71 Supra n 13. A view which has been rejected by some commentators, such as Detmold: “The two legal orders [of the states and the Commonwealth] are not of equal status. The States have submitted themselves to the Commonwealth, and the Commonwealth legal order therefore embraces the State legal order”:Detmold, M J, The Australian Commonwealth (1985), 19Google Scholar.
72 Ibid at 111.
73 Supra n 14.
74 Supra n 13.
75 (1870) QB l. Their Honours recognised the development which had taken place in the rule, and seemed content to accept modem restatements of it, in cases such as Chaplin v Boys [1971] AC 356. Their Honours were careful, however, to reject the “flexibilty exception” present in Lord Wilberforce's judgment in that case; see Breavington supra n 13 at 111-4 per Brennan J and at 147-8 per Dawson J.
76 Supra n 14.
77 Supra n 13.
78 Supra n 14.
79 This formulation was: “A plainitff may sue in the forum to enforce a liability in respect of a wrong occurring outside of the territory of the forum if - 1. the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defndant a civil liability of the kind which the the plaintiff claims to enforce; and 2. by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce”: supra n 13, 110-111.
80 Supra n 13.
81 Toohey J thought the reference to “another country” (in formulations of the rule in Phillips v Eyre) “strikes a somewhat discordant note as between the States and Territories of Australia “: supra n 13, 160.
82 Ibid 163. Toohey J accepted Lord Wilberforce's “flexibility exception” as opposed to Brennan and Dawson JI in Breavington.
83 [1982] VR 437, 460-461.
84 Toohey J at 167 quoted from the judgment of Marks J ([1982] VR 437, 460-1) that “having regard to the present-day mobility of people and traffic in and out of the Australian States and Territories individual schemes must be seen as operating together to form something in the nature of a single interlocking structure for the nation. The application of private international law rules as though each scheme was that of a sovereign state at arm's length tends to frustrate their planned operation, and increases the likelihood of unintended windfalls and losses”.
85 Supra n 13, 167.
86 Supra n 14.
81 Supra n 13.
88 Supra n 14.
89 Supra n 13, which has been followed in a number of cases, see supra n 39.
90 Supra n 14.
91 Supra n 13 per Wilson, Deane and Gaudron JJ.
92 MasonJ.
93 Brennan and Dawson JJ.
94 Toohey J.
95 Supra n 13.
96 Supra n 14.
97 Falconbridge, JD, Essays on Conflict of Laws (1947) 227-234Google Scholar.
98 V Kerruish supra n 35, 87, said of traditional conflicts doctrine that “[i]t is evident that a body of doctrine evolved in the context of conflicts of law between sovereign nations at arms length, is likely to need some adaptation to serve the puiposes of a federation ... where the method [of choice of law] seems inappropriate, either in the result or because established categories and choice of law rules are inapposite, other methods ... can be used.” See also Pryles M and Hanlcs, P, Federal Conflict of Laws (1974), 67-8Google Scholar.
99 Deane Jin Breavington, supra n 13, 132. See also JD Falconbridge supra n 97, 234-7 for a comparison of the United States Supreme Court's jurisdiction with that of the Canadian Supreme Court, and the impact of this on conflicts rules in the two countries. As to why the United States Supreme Court has not attempted to be more of a court of general appellate jurisdiction see P Hay, “International Versus Interstate Conflicts Law in the United States” (1971) 35 Rabels Zeitschrift fur Auslandisches und Intemationales Privatrecht 429, 486-7.
100 Supra n 12; supra n 3, 1-2.
101 Supra n 12, 720.
102 Ibid 721.
103 Ibid 729. There were many other examples quoted of the identification of the two leading to an unsatisfactory resulL
104 Scoles, E F, “Interstate and International Distinctions in Conflict of Laws in the United States” (1966) 54 California L Rev 1599Google Scholar.
105 Recognition of the role of policy in the formulation of conflicts rules was advocated 40 years previously. Lorentzen, E G, “Territoriality, Public Policy and the Conflict of Laws” (1924) 33 Yale U 736, 745CrossRefGoogle Scholar argued that “[s]ound progress in [conflicts] can be made only if the actual facts be faced, which show that the adoption of the one rule or the other depends entirely upon considerations of policy which each sovereign state must determine for itself'.
106 Supra n 104 at 1600.
107 Ibid.
108 P Hay, supra n 99.
109 V Kerruish, supra n 35, 87.
110 Yntema, H E, “The Historic Bases of Private International Law” (1953) 2 American J of Comparative Law 297CrossRefGoogle Scholar.
lll As noted at n 12, this view is not universally accepted.
112 Supra n 110, 299.
113 Supra n 12, 379.
114 Supra n 14.
115 Supra n 12,372
116 Supra n 104, 1602. see also Leflar, R A, “Extrastate Enforcement of Penal and Governmental Claims” (1932) 46 Harvard L Rev 193, 215CrossRefGoogle Scholar.
117 Supra n 4.
118 Id.
119 Stale of Maryland v Turner (1911) 132 NYS 173.
120 Municipal Council of Sydney v Bull [1909] 1 KB 7; City of Regina v McVey (1922) 23 OWN 32; Wayne County v American Steel Export Co (1950) 101 NYS (2d) 522; City of Detroit v Proctor (1948) 61 A 2d 412.
121 In re Visser [1928] 1 Ch 877; Moore v Mitchell (1929) 30 F 2d 600 US Cof Apps - 2d Circ.
122 Metal Industries (Salvage) Ltd v Owners of the ST “Harle” [1962] SLT 114.
123 Supra n 4.
124 This is due to certain authorities (see Belyando Shire Council v Rivers [1908] QWN 17; Chenoweth v Summers [1941] ALR 364 and State of Victoria v Hansen [1960] VR 582) which have held that an action may be prosecuted in the taxing state itself by serving a Defendant, who is out of the taxing state but within Australia, with a writ in respect of the unpaid taxes pursuant to the provisions of the Service and Execution of Process Act 1901 (Cth). The Act does not directly provide for the enforcement of revenue laws, but in these cases it was held that the respective taxes constituted implied contracts and the action was therefore within s l l(l)(b) and (c) of the Act. It is submitted, however, that care must be taken with these authorities. The leading case is Belyando Shire Council v Rivers, in which the action was to recover local government rates. In Chenoweth the action was for Victorian income tax, while in Hansen the action was for Victorian stamp duty. These later cases have added little of substance to the reasoning in Rivers. It is submitted that these cases are vulnerable to attack because the proposition that taxes create contractual-type liabilities is by no means universally accepted. Additionally, the later cases rely heavily on Rivers, which was a case in which the Court did not have the benefit of argument from the Defendant. If these authorities are sound, a state is able to enforce its revenue laws without the need to commence an action in another state. M Pryles and P Hanks, Federal Conflict of Laws (1974) 17, observe that the Service and Execution of Process Act would “provide a simple means of avoiding the rule in Government of India v Taylor, if that rule does operate in the Australian federal context”. Even if these authorities are sound, two things should be noted. First, they have no application to a situation where a state attempts to enforce its revenue laws in another state. Secondly, the authorities only apply to revenue actions while the non-enforcement principle spelt out in Spycatcher applies to a much broader range of actions.
125 (1888) 127 us 265.
126 Ibid 290.
127 (1893) AC ISO, 157. This decision of the Judicial Committee, as mentioned, was followed in the United States Supreme Court decision of the same name.
128 Banco de Vizcaya v Don Alfonso de Borbon Y Austria (1935) 1 KB 140.
129 In re Selot's Trust [1902) 1 Ch 488; In re Langley's Settlement Trusts (1961] 1 WLR 41.
130 Supra n 4.
131 Id.
132 Ibid 43.
133 Supra n 4.
134 [1955) AC 491,508,510.
135 Reported in [1955) AC 516. In that case, a liquidator, appointed by a Scots Court at the suit of the Scots revenue, wished to sue McVey, who was now a resident of Eire. McVey had been a director of the Scots company which the liquidator now controlled. The company owed substantial sums to the Scots revenue.
136 Ibid 529-30.
137 Ibid 529.
138 Ibid. This passage was cited by the High Court in Spycatcher, supra n 4, 44.
139 Supra n 4, 43.
l4l (1929) 30 F 2d 600. As can be seen by their citation in Spycatcher, supra n 4, and Government of India v Taylor, supra n 134.
142 [1954) Ir R 108, 117, [1955) AC n 530,533.
143 (1930) 218 us 18.
144 See Carter, PB, “Rejection of Foreign Law: Some Private International Law Inhibitions” (1984) 55Google Scholar British Year Book of International Law 111; P B Carter, “Transnational Recognition and Enforcement of Foreign Public Laws” (1989) 48 Cambridge U 417; J Castel, “Foreign Tax Cairns and Judgments in Canadian Courts” (1964) 42 Canadian Bar Review 277; RE Goldman (ed), “International Enforcement of Tax Claims” (1950) 50 Columbia L Rev 490; Ralli Bros v Compania Naviera Sota Y Aznar [1920) 2 KB 287; Banco Frances E Brasileiro SA v Doe (1975) 36 NY 2d 592,331 NE 2d 502.
145 M Howard, supra n 5.
146 Supra n 13.
147 Supra n 14.
148 Supra n 4.
149 Supra n 140.
150 (1935) 296 us 268.
151 The first case in which another state's revenue law was enforced was J A Holshouser Co v Gold Hill Copper Co (1905) 138 NC 248, 50 SE 650. In that case, New Jersey was held to be able to prove a debt against a company which was in receivership under the control of the Supreme Court of North Carolina. The debt arose under a New Jersey statute which had imposed a business tax upon the company. The North Carolina Court treated the claim of New Jersey in the same way as any other debt which a creditor might try to prove in the receivership. It should be noted, however, that the non-enforcement principle was not considered by the Court, nor raised by those opposing the New Jersey claim.
152 Supra.n 150,275. The Supreme Court had left the question open in Moore v Mitchell, supra n 143.
153 Supra n 150, 279.
154 Ibid US 279, Led 229.
155 Ibid US 276-7, L ed 228.
156 Supra n 150.
157 State, ex rel Olclahoma Tax Commission v Rodgers (1946) 193 SW 2d 919; State of Oklahoma, ex rel Olclahoma Tax Commission v Neely (1955) 282 SW 2d 150; State of Ohio, ex rel Duffy (A-G) v Arnett (1950) 234 SW 2d 722.
158 For example in both City of Detroit v Proctor (1948) 61 A 2d 412 and Wayne County v Anerican Steel Export Co (1950) 101 NYS 2d 522 suits for one state's taxes were held to be unenforceable in another state's courts. These cases are consistent with earlier authority such as State of Maryland v Turner (1911) 132 NYS 173.
159 (1946) 193 SW 2d 919 at 924 per Anderson J.
160 (1968) 65 DLR (2d) 717.
161 In this case a Saskatchewan resident was injured in a car accident in Manitoba and was hospitalised in that province. Saskatchewan had a compulsory health insurance scheme and the plaintiffs Manitoba hospital bill was paid pursuant to this by the Saskatchewan insurance scheme. The plaintiff nevertheless claimed from the defendant his hospital expenses, as under the Saskatchewan Act the plaintiff was able to recover such expenses and remit them to the Saskatchewan insurance fund. The Manitoba defendant claimed that such a claim by the plaintiff was only to benefit the revenue of Saskatchewan and was unenforceable. The Court held that this claim was not of a “revenue” nature: (1968) 65 DLR (2d) 717, 720. The obiter of the Court, cited in the text, represented a departure from the earlier Canadian authority of City of Regina v McVey (1922) 23 OWN 32.
162 Ibid 721, citing from the speech of Lord Keith of Avonholm.
163 Supra n 159.
164 Supra n 157.
165 Supra n 160, 723.
166 (1967) 9 FLR 424. See M Pryles and P Hanks, supra n 98, 101-2.
167 Ibid 436.
168 Ibid 439.
169 (1968) 122 Cl.R 338. See M Pryles and P Hanks, supra n 98, 102 where the High Court's decision was criticised.
170 Supra n 143.
171 (1954) 92 Cl.R 406.
172 Ibid, 415 per Dixon CJ, McTieman, Fullagar and Taylor JJ.
173 C J A Hazelwood, “Full Faith and Credit Clause as Applied to Enforcement of Tax Judgments” (1934-5) 19 Marquette L Rev 10; RA Leflar, supra n 116; J Castel, supra n 144; Trott, B, “Conflict of Laws Enforcing Tax Laws of Sister States” (1949) 47 Michigan L Rev 796CrossRefGoogle Scholar; Friedman, W (ed), “Extra-Territorial Collection of State Inheritance Taxes” (1929) 29 Columbia L Rev 782Google Scholar; McElroy, M, “The Enforcement of Foreign Tax Claims” (1960) 38 U Detroit U l; A Ehrenzweig, supra n 3Google Scholar.
174 Supra n 4.
175 Peter Buchanan Ltd v McVey, supra n 135 as cited by the High Court in Spycatclrer, supra n4,44.
176 Supra n 140.
177 Supra n 135.
178 Supra n 4.
179 B Tron, supra n 173, 799 said “It is suggested that Judge Hand's statement that one state should not pass on provisions for the public order of another is too ambiguous to be useful. All state statutes are to some degree provisions for the public order, and certainly it was not intended that the forum should refuse to take notice of all foreign statutes.” J Castel, supra n 144, 296, 15 years later used remarkably similar language before describing the rationalisation as being “not very helpful”.
180 Many of the articles which have argued against the applicability of the non-enforcement principle to this situation are cited in nn 181-185 below.
181 B Trott, supra n 173, 799; J Castel, supra n 144, 297; Beach, J, “Uniform Interstate Enforcement of Vested Rights” (1917-8) 27 Yale U 656, 662CrossRefGoogle Scholar; Freeze, J, “Extraterritorial Enforcement of Revenue Laws” (1938) 23 Washington Uni LQ 321,333Google Scholar.
182 B Trott, supra n 173,800; J Castel, supra n 144,296; M McElroy, supra n 173, 3; Rodgers,supra n 159, 926.
183 J Castel, supra n 144,296; Rodgers, supra n 159,926; J Freeze, supra n 181,333.
184 J Castel, supra n 144, 296.
185 M McElroy, supra n 173, 3.
186 Supra n 4.
187 Supra n 13.
188 Id.
189 Supra n 13, 78.
190 lbid 91.
191 Ibid 121-2.
192 Beach, supra n 181, 657.
193 Supran 13.
194 Supra n 14.
195 Supra n 4.
196 This is achieved by the detmition given to a “proceeding” in s 3(1) of the respective Acts; eg Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and Jurisdiction of Couns (Cross-vesting) Act 1987 (Vic).
197 For the purposes of this article the writer will assume that no issue as to the validity of the service of the writ upon the New South Wales resident arises. For a discussion of the effect of the cross-vesting scheme upon personal service see Mason, K Crawford, J, “>The Cross-vesting Scheme” (1988) 62 AU 328Google Scholar, 335-6 and Griffith et al “Further Aspects of the Cross-vesting Scheme” (1988) 62 AU 1016, 1022-3.
198 This would be achieved by a combination of s 4(3) of the Victorian Act (which vests the New South Wales Court with jurisdiction over Victorian state matters) and s 9 of the New South Wales Act (which in effect allows the New South Wales to “accept” the jurisdiction vested by the Victorian Act). However, it should be noted that in this circumstance, the action might be transferred back to the Victorian Supreme Court pursuant to s 5(2)(b)(ii)(A) of the cross-vesting Acts. This provides, in effect, that if a court is exercising jurisdiction only pursuant to cross-vesting legislation, then that action is liable to be transferred to a court which would have had non-cross-vested jurisdiction over the matter.
199 Section l l(l)(b) of the cross-vesting legislation provides relevantly that “Where it appears to a court that the court will, or will be likely to, in determining a matter for determination in a proceeding, be exercising jurisdiction conferred by this Act or by a law of the Commonwealth or a State relating to cross-vesting of jurisdiction -... if that matter is a right of of action arising under a written law of another State or Territory, the court shall, in d errnining that matter, apply the written and unwritten law of that other State or Territory
200 Supra n 2.
201 Supra n 4.
202 Ibid, 41. The decision of the United States Supreme Court in Milwaukee County v ME White, supra n 150, 272 also suggested the non-enforcement rule was not one of jurisdiction.
203 This was called the narrow view by Kelly, D and Crawford, J, “Choice of Law Under the Cross-vesting Legislation” (1988) 62 ALJ 589, 597Google Scholar. They argued that this was the most defensible view to adopt of the scope of the scheme although they conceded that it was contrary to the express words of s 4 of the state acts. They argued, however, that such a view was more consistent with the broad thrust of the whole scheme.
204 The cross-vested jurisdiction on this view was described as “cumulative” on the New South Wales normal common law jurisdiction by G Griffith et al. “Choice of Law in Cross-vested Jurisdiction: A Reply to Kelly and Crawford” (1988) 62 ALJ 698, 701. They argued that this was the proper manner in which to view the effect of the scheme. Kelly and Crawford had rejected this view, arguing “[w]ithin a single legal system, there cannot exist two valid rules leading to conflicting results on the same set of facts. The principle of non-contradiction prevents it One or other of the rules must be invalid or misstated”: supra n 203, 599. Griffith et al countered: “[t]he unacceptability of the words of the Kelly-Crawford approach lies, it is suggested, in their words “Within a single legal system”. There is no “single” legal system involved, but two legal systems. H the Supreme Court of South Australia were to give judgment in favour of the Plaintiff on the basis of the Victorian statute ... there would be no inconsistency between this and a judgment ... rejecting the claim in the ordinary South Australian jurisdiction. The cross-vesting legislation simply brings the potentially separate court proceedings together in one forum”: (1988) 62 ALJ 698, 705.
205 Supra n 4.
206 Folliott 11 Ogden (1789) 1 H Bl 123; 126 ER 75; The Antelope (1825) 10 Wheat 66, 6 Led 268; see also Estabrook, supra n 18, 209-210.
207 In this connexion see Fox, R and Frieberg, A, Sentencing-State and Federal law in Victoria (1985) 29-30, 174-7Google Scholar.
208 Supra n 13.
209 Starting with the cases of Holman v Johnson (1775) 1 Cowp. 341, 98 ER 1120 and Planche v Fletcher (1779) 1 Dougl 251, 99 ER 164.
210 Supra n 4.
211 Supra n 169.
212 Supra n 143.
213 Supra n 169.
214 Ibid 344-5.
215 Ibid.
216 Ibid 344.
217 See Moshinsky, M, “State Extraterritorial Legislation and the Australia Acts 1986” (1987) 61 AU 779Google Scholar; Moshinsky, M, “State Extraterritorial Legislation - Further Developments” (1990) 64 AU 42.Google Scholar Moshinsky argues that a state now has no limitation at all upon its power to legislate. As noted in the latter of the articles, this view has been challenged by P M Griffin, “Division 30 of the Stamp Duties Act -Territoriality and the Australia Acts 1986” (1988) 17 Australian Tax Review 142, and HP Lee “The Australia Act 1986 - Some Legal Conundrums” (1988) 14 Mon U L Rev 298. It is beyond the scope of this paper to consider this controversy in detail. However, even if the broader view of Moshinsky is not accepted, each case would have to be considered separately to see if the law was within a state's legislative competence, even if it operates outside of the state's territory, eg Union Steamship Co v King (1988) 166 CI.R. l. It is submitted therefore that even without a broad view of the Australia Acts, the question will not be as simple as whether the law has any cperatim outside of a state's territory.
218 Supra n 143.
219 Ibid 23-4.
220 M Pryles and P Hanks, supra n 98, 91.
221 Supra n 13.
222 Supra n 14.
223 Id.
224 Id.