Topic – Jurisdictional issue in Private International Law
Facts –
NCB was a corporation established under Saudi Arabian law.
NCB had no branch office, agency or place of business in NSW.
NCB had arrangement with NSW bank which involved bank collecting proceeds from NSW importers and remitting proceeds to NCB in Saudi Arabia.
NCB was requested by the plaintiff to honour its guarantee to the full amount that was owed by the principal.
Issue – Whether NCB was present/carrying on business in NSW and therefore subject to common law jurisdiction of NSWSC for abuse of legal process in Switzerland
Judgement –
In common law, a company is considered to be present in a place and within the common law jurisdiction of its courts if it carries on business there.
Here, Holland J identified three criteria that tend to establish that a company is carrying on a business in the forum:
The company is represented in the forum by an agent who has authority to make binding contracts with persons in the place;
The business is conducted at some fixed and definite place in the forum; or
The business has been conducted in the forum for a sufficiently substantial period.
For submission, Holland J stated that in order to establish such a waiver, “the facts must show a voluntary act unequivocally evincing an intention to abandon or not assert a right”. — a question of fact.
If the defendant consistently maintains its objection to jurisdiction, it will not be taken as having submitted even it makes other applications which go beyond a protest to the jurisdiction.
Further, here, letters by the solicitor re intention to proceed in court was not held to constitute submission to court’s jurisdiction – this is because in determining whether conduct constitutes submission to a court’s jurisdiction, regard only to what happens in court proceedings.
Agency — a corporation will not have presence if the agent is ‘a mere ministerial agent’ or is carrying on his own business and not that of the foreign corporation.
Accordingly, here presence is not established by showing that the foreign corporation has appointed a local solicitor to commence or defend particular legal proceedings in the jurisdiction — i.e., not the business of the corporation.
Indicia as to presence by agent: – a) Name of the foreign corporation displayed at the agent’s place of business b) Foreign business pay rent/office expenses or employ staff for the agent.
