By Jack Wass and Maria Hook
Most practitioners and judges only encounter the conflict of laws (or private international law) intermittently. The subject can be seen as an arcane corner of civil procedure, or a set of complications that must be passed before getting to the real issues on the merits. However, Associate Judge Bell is one judge that has always known a conflicts problem when he sees one – and has been prepared to engage with the principles underlying a cross-border problem, even if the parties were not.
With the news of the Associate Judge’s retirement, this post notes some of the Associate Judge’s contributions to the subject in New Zealand.
At the cutting edge of conflicts debate is the question of how common law courts should deal with allegations that foreign courts lack the independence that we regard as the hallmark of a recognised legal system. Associate Judge Bell examined this subject by reference to overseas authority in Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992, where he articulated the different approaches the courts should take to such an allegation, depending on whether it is raised prospectively (on a dispute as to jurisdiction) or after the fact (on an application to enforce a foreign judgment). With a further judgment on the subject having just been released ([2021] NZHC 2687) and the case apparently going to trial, this will not be the last word but represents an important guide to the proper approach.
One topic with which all Associate Judges are familiar is the enforcement of foreign judgments, since most applications are brought by way of summary judgment. Yoonwoo C & C Development Corp v Huh [2019] NZHC 2986 is typical of the Associate Judge’s approach: having cited the Court of Appeal’s “helpful” outline of the basis on which foreign judgments were enforced, the Associate Judge proceeded to explain—by reference to cases as old as 1760—the basis of enforcement actions in the historical writs, or the historical phenomenon of “jamming of other obligations into actions in debt and indebitatus assumpsit”.
Jurisdiction matters, too, are a staple for Associate Judges and are another area that has benefited from Associate Judge Bell’s nuanced reasoning. In Perpetual Trustee Co Ltd v Downey (2011) 21 PRNZ 28, for example, the Associate Judge carefully outlined the proper approach to be taken to the enforcement of exclusive jurisdiction agreements, referring to English, Australian and New Zealand authorities, and distinguishing clearly between the court’s discretion not to apply an exclusive jurisdiction clause and the question of forum non conveniens (at [32]) – a distinction that is often ignored in practice. Having laid the groundwork in this way, the Judge was then able to explain with great clarity why an exclusive jurisdiction clause could not prevail over Part 16 of the Companies Act 1993.
In yet another oral judgment, the Associate Judge contributed to the deeply controversial topic of jurisdiction of cross-border intellectual property claims, which has vexed common law courts to the highest level. In Jedis Ltd v Vodafone New Zealand Ltd [2012] NZHC 2448, the judge not only made observations about how the existing cases should properly be read, but went as far as discussing the implications under Australian constitutional law of the case being heard in Australia, and English authority on the extent to which it would serve a useful purpose to bring a foreign defendant into the proceeding.
We could point to numerous other cases along similar lines – discussing trans-Tasman proceedings (Leeds v Richards [2016] NZHC 1191, [2016] NZAR 1016), cross-border restitutionary claims (Fruit Shippers Ltd v Petrie [2020] NZHC 749), the law applicable to corporate identity (Addleman Trustee Ltd v Lambie [2021] NZHC 2504) and the meaning of fraud (Guangzhou Dongjiang Petroleum Science & Technology Development Co Ltd v Kang [2020] NZHC 3068). While counsel might not have always welcomed it, New Zealand law is better for the contributions of the Associate Judge on these topics.
