This week's lectures are presented by Dr Rita Matulionyte from Newcastle Law School.

Jurisdiction in the broadest sense = private international law

  • Choice of forum
  • Choice of law/applicable law
  • Recognition and enforcement of foreign judgements

Jurisdiction in a narrow sense:

  • Choice of forum: court of which state has competence to hear the dispute?

Rita Matulionyte explains jurisdiction

Megan Patten on jurisdiction


Defamatory information was published about you by someone from Australia on a US website (badpeople.com), which is hosted in a server in Vanuatu. The website has 2000 users from around the world, including 50 users in Australia. The questions that need to be determined in establishing jurisdiction are:

  • Which courts have jurisdiction over the website? (Jurisdiction question)
  • Which country's laws apply to adjudicate the matter? (Choice of law question)
  • Can a foreign court enforce the judgment? (Foreign enforcement question)
  • Personal jurisdiction: jurisdiction over the person (e.g. resident v non-resident)
  • Subject matter jurisdiction: jurisdiction over the subject matter (e.g. jurisdiction over a foreign trade mark)
  • In rem jurisdiction: jurisdiction over immovable property (e.g. real estate)
  • Declining jurisdiction: forum non conveniens doctrine

Personal jurisdiction

Rita Matulionyte on personal jurisdiction

Three categories:

  • Presence within the law area
  • Submission to the court’s power or
  • As allowed under the relevant court rules
    • defendant is domiciled or ordinary resident in the relevant jurisdiction
    • disputed property is within relevant jurisdiction (in rem jurisdiction)
    • special grounds for torts, contracts, breach of statute

Choice of jurisdiction by the parties to the contract

If no choice of jurisdiction, Australian courts may have jurisdiction over an international contract where the contract:

  • Is made within the jurisdiction or
  • Is governed by the law of the forum or
  • Is broken/repudiated within the jurisdiction

Where an e-contract is made: Electronic Transactions Act 1999 (States and Territory equivalents):

  • E-message (normally, acceptance) is taken to have been received by the recipient in their place of business/ordinary residence
  • Parties may agree on the place where e-contract was made; however, this does not preclude the courts from determining where a contract was actually made

Where an e-contract was broken by repudiation?

  • Place where the message of repudiation originated
  • Presumption: originator’s place of business/ordinary place of residence

Mitch Hughes explains when Australian statutes will apply extraterritorially

Australian Competition and Consumer Commissioner v Chen (2003) 132 FCR 309

  • Facts: Chen, who resided in the US, ran a fake website for the Sydney Opera House, through which he sold unauthorised tickets. The ACCC sued him claiming violations of the Australian Consumer Law.
  • Issue: the court had to determine whether the misrepresentation occured in Australia or the United States.
  • Held: if misleading or deceptive conduct on an overseas website can be shown to have caused damage to Australian consumers, personal jurisiction over a foreign defendant can be established.

IP rights are territorial: AU courts have jurisdiction only over IP rights granted in Australia and infringed in Australia

Ward Group Pty Ltd v Brodie & Stone plc. (2005) 143 FCR 479 :

  • Facts: defendant located in UK uses an AU trademark in respect of its goods and services without authorisation of AU right holder
  • Held: the use takes place outside Australia; unless defendant intends to do business with Australian consumers, access is not sufficient

Rita Matulionyte on personal jurisdiction over torts

General rule: Courts have jurisdiction over the dispute if the tort occurred inside the territory of the court: lex loci delicti rule

Where tort occurs in online environment?

  • Place of a defendant’s conduct? Defendant’s domicile?
  • Residence of a right holder?
  • Place(s) of access to the online content?
  • Extension of a domain name (.com, .cn, .au)?
  • Place of a server?

Jennifer Davy on the lex loci delicti rule

Gutnick v Dow Jones Inc (2002) CLR 575

  • Facts: Dow Jones & Co, Delaware Corp., published some allegedly defamatory material about Joseph Gutnick in Barrons Magazine online, per subscription. 305,563 copies sold (14 in Victoria), 550,000 online subscribers (300 in Victoria). Gutnick sued Dow Jones in the Victorian court.
  • Issue: personal jurisdiction over Dow Jones? Where did defamatory publication occur?
  • Place of server (New Jersey, US), unless adventitious or opportunistic? “Single publication” rule
  • Any place where the content can be accessed, including Australia?
  • Held: Balance of interests of publisher/freedom of speech and individual’s reputation
  • Defamation occurs in the place where damage to reputation occurs
  • Damage to reputation occurs in the place where defamatory material is downloaded
  • No “single publication rule”, as applied by US courts

Jack Longley on Dow Jones v Gutnick

Kelly v Levick [2016] QMC 11

  • Facts: The Defendant posted a defamatory post about the Plaintiff on his Facebook page. It was found that the post was 'downloaded' in Victoria, Australia and South Africa by two (2) individuals. The Plaintiff commenced proceedings in Queensland.
    * Issue: Does a Queensland court have jurisdiction to hear the case if there has been no 'download' in accordance with the principle from Dow Jones v Gutnick (see [5])?
  • Section 11 of the Defamation Act 2005 (Qld) includes a regime for choice of jurisdiction, which includes an “Australian jurisdictional area”.
  • As the post was downloaded in Victoria, which is an “Australian jurisdictional area”, the “cause of action” proceedings in Queensland can proceed.
    * Must apply Victoria's defamation laws pursuant to S.11(1) of the Defamation Act 2005 (Qld).
  • Held: As long as publication is 'downloaded' to one resident of an “Australian jurisdictional area” then a Queensland court will have jurisdiction to hear the cause of action.
  • It is statue which determines jurisdiction and not the principle of Dow Jones (although it important to determine where the publication was made).

Declining jurisdiction and forum non conveniens

Rita Matulionyte on declining jurisdiction

Courts can deny jurisdiction in case of “clearly inappropriate forum”. See Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Facts to be taken into account:

  • Connection between the chosen forum and the subject matter or parties
  • Forum provides a legitimate and substantial juridical advantage to the plaintiff
  • Alternative forum would grant plaintiff an adequate relief
  • Law of the chosen forum is the applicable substantive law

Cameron Martin explains Forum Non Conveniens

Example: Dow Jones v Gutnick (2002) CLR 575:

  • Defendant’s argument: Victoria is forum non convenience since law of New Jersey would be the substantial applicable law
  • Held: no, Victorian law shall be applied since the reputation was damaged in Victoria

Macquarie Bank v Berg (1999) NSWSC 526:

  • Facts: Berg, a former employee of the Macquarie Bank, was posting allegedly defamatory material on the US-based website. Macquarie applied for interlocutory injunctive relief to stop the conduct.
  • Issue: whether the court had jurisdiction to grant an injunction to prevent conduct occuring outside Australia.
  • Held: Generally yes, but the court declined an injunction because of: the uncertainty of enforceability of such an order; the international nature of the internet and potential international effect of NSW law if the injunction was granted; and established case authority which demonstrated great caution in granting interlocutory relief.

Tom Ryan explains Macquarie Bank v Berg

Rita Matulionyte on subject matter and in rem jurisdiction

Subject matter jurisdiction

Court’s power to decide that type of case, e.g.: * can not get divorce in Small Claims Court * Small Claims court cannot hear family law matters, Federal Court has exclusive jurisdiction in Australia * Australian court cannot hear disputes over validity or infringement of the UK trademark

Does AU court have jurisdiction to hear claims over infringement of foreign copyright?

Lucasfilm Ltd v Ainsworth [2012] 1 AC 208

  • Facts: Ainsworth, a UK resident, was selling Stormtrooper outfits online. Lucasfilm, US company, sued Ainsworth before the UK courts both for the UK and US copyright infringement
  • Issue: does UK court have jurisdiction over the US copyright infringement? Does Mosambique rule apply?
  • Held: Mosambique rule denied, jurisdiction confirmed

Will this approach be upheld in Australia?

In rem jurisdiction

When a thing (res) is in the state, a court may make determination over it even when the personal jurisdiction is absent E.g. applied in real estate cases

What about domain names registered in registrars located in the forum?

US Anti-Cybersquating Protection Act: in rem jurisdiction over domain names

Cable News network LP v Cnnnews.com 56 Fed. Appx. 559 (4th Cir 2003):

  • F: Chinese company owned a domain name cnnnews.com registered in the US
  • H: US courts confirmed in rem jurisdiction over the domain name

Rita Matulionyte on choice of law

Choice of law

A question different from jurisdiction question: which law governs the dispute?

  • Forum law or
  • Law of a foreign country

Different choice of law rules apply to different categories of law; e.g. contract, tort

Parties may choose law applicable to the contract. If no choice of law is indicated by parties:
* whether parties have evinced a common intention as to the applicable law, eg jurisdiction clause * the law with which the contract has the closest connection – see form and legal language, place of contract, place where the contract is to be performed, place of residence of the parties

Previous rule: double actionability rule: the events are actionable both under the law of the forum and under the law of the place where the events took place

Current rule: Lex loci delicti: the law of the place of the wrong

Georgia Ardouin explains the lex loci delicti rule

Place of wrong online?

E.g. Dow Jones & Company Inc v Gutnick

  • Held: place of wrong in defamation proceedings in respect of online content is the place where damage to reputation is suffered
  • i.e. where the plaintiff had reputation and where the content was downloaded

Compare: Ward Group Pty Ltd v Brodie & Stone plc. (2005) 143 FCR 479 (access online is not sufficient, targeting needed)

Generally: Australian courts are very reluctant in applying foreign law. See forum non-convenience doctrine.

Rule 116 of the Uniform Civil Procedure Rules 1999 (Qld) enables the court to order that substituted service is will be taken to have occurred when normal service is impractical and another acceptable method of service is used. In order for a plaintiff to be successful in obtaining an order allowing substituted service of court documents via social media, the plaintiff will need to establish:

  • that there is a practical impossibility of normal service in the circumstances; and
  • that the proposed method of substituted service (ie via social media) will be likely to bring knowledge of the proceedings to the defendant.

The threshold issue for the court is whether it can be ascertained that the defendant is the personality behind the social media account.

Rhiannon Butcher explains substituted service via social media

Andrew Avenell explains substituted service via social media

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