2008 Survey of Developments in Australian Private International Law

Abstract

This review of the Australian developments in private international law in 2008 surveys a surprisingly large number of decisions in the midst of a Global Financial Crisis. It adopts the structure and methodology of previous annual reviews, namely making of qualitative rather than quantitative review of important decisions. Among the notable decisions this year included the following. At the highest level, the newly constituted High Court reaffirmed the strict Australian test to forum non conveniens in Puttick v Tenon (formerly Fletcher Challenge Forests). In a second important development regarding classification as procedural versus substantive law, the New South Wales Court of Appeal in Garsec v His Majesty the Sultan of Brunei reminded us that characterization occurs in the forum and that Australian courts adopt a narrow view of what is procedural law. The year also saw the Federal Court rule on concurrent proceedings in the United States and Australia with an application for an anti-suit injunction in the copyright dispute concerning the film and book ̳The Secret�. This was a dispute that did much to highlight the nature of modern disputes about jurisdiction and venue, and the ascendency of the anti-suit injunction in transnational litigation. This article proceeds in traditional conflicts fashion, first covering developments in jurisdiction where most of the action was this year. It then reviews more briefly the recent case law in choice of laws and enforcement of judgments. It concludes by noting that rather than a year of new directions, 2008 developments reinforced and clarified past major decisions.