Where the parties have failed to plead foreign law, when can the court apply New Zealand law in default?
By Jack Wass (Stout Street Chambers)
This is the second of two posts about the pleading and proof of foreign law.
In general, parties can choose whether or not to plead foreign law; where it suits them to do so, they can choose not to plead foreign law and rely on New Zealand law in default. In my previous post, I explained that where the parties had chosen not to rely on foreign law, the court should not conduct its own enquiry into the content of that law; it must apply New Zealand law if it applies any law.
However, in recent years there has been a growing acceptance that there are circumstances in which the parties and the court cannot simply fall back on New Zealand law.
The cases fall into three categories:
(a) Where, on proper analysis, one party’s claim positively relies on the content of foreign law, and they have failed to prove it;
(b) Where the case so obviously raises a question of foreign law that it is necessary as a matter of case management that the parties plead to it; and
(c) Where New Zealand law is inherently local and it would be too strained or artificial to extend it to the foreign facts in issue.
The first category can be broken down further into three situations:
(a) Where the parties have proved the content of foreign law on some issues but not others, the courts can sometimes apply the law of the forum to ‘plug the gaps’. But in other cases the English courts have refused to do this, so that parties omit to plead the law applicable to all issues at their peril (Global Multimedia International Ltd v Ara Media Services [2006] EWHC 3107 (Ch); Tamil Nadu Electricity Board v St CMS Electricity Co Ltd [2008] 2 Lloyd’s Rep 484; cf Balmoral Group Ltd v Borealis UK Ltd [2006] 2 CLC 220 and Law Debenture Trust Corp plc v Elektrim SA [2009] EWHC 1801 (Ch)).
(b) In other cases, a party may have proved the primary rule (for example, by adducing a copy of the statute) but failed to prove the rules of interpretation necessary to resolve an ambiguity in its construction. Again, in some cases the courts will apply New Zealand rules of interpretation in default (Koops v Den Blanken (1999) 18 FRNZ 343 (CA)) but in other cases the court will be left in such uncertainty that further evidence is required (Cheon v Attorney-General HC Auckland CIV-2007-404-7669 at [49]).
(c) Third, the primary rules may empower the decision-maker to exercise a discretion. Where there is no evidence of the principles that would apply to the exercise of the discretion, the court is left in a difficult position. The notorious example is the High Court of Australia’s decision in Neilson v Overseas Projects Corp of Victoria Ltd (2005) 223 CLR 331, where the majority found that the statute had to be interpreted as if it were a domestic statute, while the dissenters found that the failure to prove the principles that would govern the exercise of the discretion meant that the primary rule could not be applied at all.
In the second category of case, the judge may decide that the case so clearly raises a question of foreign law that it would not be fair or consistent with the overriding principles of civil procedure to allow the parties to fall back on the law of the forum (Belhaj v Straw [2014] EWCA Civ 1394, [2015] 2 WLR 1105); this is an exception to the usual rule.
The third category is where the New Zealand law in question is inherently local or creates a special institution, so that it cannot be extended to the foreign facts. Where a general body of rules is concerned (such as tort, or contract, or restitution), it will usually be possible to treat the case as if it were a domestic case and apply New Zealand law accordingly. But where the law in question is purely local, that might not be appropriate. As the Federal Court of Canada put it, the cases demonstrate:
… reluctance of the judges to dispose of litigation involving foreign people and foreign law on the basis of provisions of our legislation peculiar to local situations or linked to local conditions or establishing regulatory requirements. Such reluctance recognizes a distinction between substantive provisions of a general character and others of a localized or regulatory character… (The Ship Mercury Bell v Amosin (1986) 27 DLR (4th) 641 (FCC)).
Particular problems arise with statutory regimes. In Shaker v Al-Bedrawi [2003] Ch 350 (EWCA), the plaintiff’s claim depended on the status of a distribution. That in turn depended on technical company rules about the maintenance of reserves and the extent to which distributions could be made out of profits. The English Companies Act could not be applied literally, since it only extended to English companies, and it was not possible to ‘adapt’ the law to apply in the circumstances. It followed that because the claimant had failed to prove the content of Pennsylvanian law, the English companies legislation could not apply (although English common law rules of company law could, to the extent that they had survived the passing of the Act).
To similar effect, in Damberg v Damberg (2001) 52 NSWLR 492 the New South Wales Court of Appeal refused to presume that German tax law was the same as Australian law, with the consequence that the claim simply failed.
The ambit of this limitation remains uncertain, and the criteria for assessing whether a particular rule is ‘inherently local’ or creates a ‘special institution’ are yet to be settled. In the meantime, the safest course is to ensure that all of the necessary rules are proved. If there is any doubt about what law will apply at trial, and evidence cannot be briefed to account for that contingency, then a preliminary determination on choice of law may be necessary.
Where the parties have failed to plead foreign law, can the Court determine foreign law for itself?
By Jack Wass (Stout Street Chambers)
A judge in domestic litigation is deemed to know New Zealand law. While judges will be guided by the submissions of counsel, they determine the content of New Zealand law for themselves. Foreign law is different: a New Zealand judge cannot be assumed to know anything about the content of foreign law, or even when it should displace the New Zealand rules that would otherwise be applied. It follows that foreign law must be pleaded and it must be proved. The deployment of foreign law is an intrinsically tactical and party-driven process characteristic of New Zealand’s adversarial civil procedure.
The approach of New Zealand private international law may be summarised in five propositions:
(a) Foreign law is a question of fact that must be established to the satisfaction of the judge; the court generally cannot take judicial notice of foreign law.
(b) The content of foreign law must be established by evidence. This may be the evidence of expert witnesses, or (where permitted by s 144 of the Evidence Act 2006) documentary evidence, or by a combination of them.
(c) The judge must assess and weigh those sources, including the underlying authorities on which the experts rely, the objective being to determine how the dispute would be decided if it were heard in the courts of that country.
(d) Ordinarily, the court will only consider foreign law where the parties have chosen to plead it and thus put it in issue; it follows that the party who seeks to rely on foreign law bears the burden of establishing it.
(e) Where the parties have chosen not to plead foreign law, or have failed to prove its content, then the court will ordinarily apply New Zealand law.
In these posts, I will highlight the difficult issues at the margins of the last two propositions. What are the limits of the “ordinary” rules?
The challenge that judges face where the parties have failed to plead or prove foreign law – proposition (d) – is illustrated by a pair of cases decided by Associate Judge Bell.
Air Tahiti Nui SAEML v Pounamu International Ltd [2001] NZCCLR 16 (HC) concerned a consultancy agreement governed by the law of French Polynesia. The Judge noted that because the parties had failed to plead or prove French Polynesian law, he was required to apply New Zealand law. Although this could create an injustice where the parties’ rights and obligations were different under French Polynesian law, this was the risk that the parties took.
The Judge had been faced with the same situation in Industrial Group Ltd v Bakker HC Auckland CIV-2009-404-6432, 12 April 2010, where the parties submitted copies of the South Australian legislation but nothing more. By contrast, the Judge found in that case that it would be ‘not be safe’ to apply New Zealand law in default, because of the risk of an injustice arising from differences with New Zealand law. Having apparently undertaken his own research into South Australian law, he concluded that under both laws there was an arguable dispute justifying the statutory demands being partially set aside. Although the judgment was set aside on other grounds, the Court of Appeal praised the Judge’s analysis of the (South Australian) legal issues: [2011] NZCA 142, (2011) 20 PRNZ 413 at [8].
What approach was correct?
In Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 NZLR 289 (PC), the Privy Council noted that ss 39 and 40 of the Evidence Act 1908 (replaced by s 144 of the Evidence Act 2006) allowed the court to assess the content of foreign law by referring to sources itself, without the benefit of expert evidence. Shortly after, the Court of Appeal held that a judge could inform him or herself from sources ‘whether they have been put before it by counsel or consulted by the members of the court on their own initiative and [in an appeal] whether or not the court below has had the opportunity of considering them’ (Skye Court Pty Ltd v Mason CA6/03, 18 June 2003 at [10]).
Whatever the position may have been under ss 39 and 40 (which were expressed in different terms), we doubt that the court’s powers now go that far. While s 144 dispenses with the need to prove foreign law through the medium of an expert, evidence of foreign law must still be produced by the parties. Section 144 empowers the parties to ‘offer’ certain material, and says nothing about the court’s power to research the law on its initiative. It is unlikely, therefore, that courts are permitted to decide a case on the basis of authorities identified in the course of their own research, not cited or relied upon by the parties. Quite apart from the formal position under s 144, that would give rise to natural justice considerations.
At the same time, the idea prevailing in England that a judge will be tainted by even contemplating sources outside the four corners of the expert’s brief is unrealistic, and where the judge considers that further sources may be available, he or she would be free to seek the parties’ submissions on them, who can thus put them in evidence. And where the parties have relied, for example, on a judgment or a textbook, the court is and must be free to conduct their own assessment of the evidence in context.
With sympathy for the position that judges are placed in when faced with a case that clearly raises issues of foreign law that have not been adequately pleaded or proved, the court cannot remedy that defect as they could with a question of New Zealand law. Notwithstanding the clear and accurate way that Associate Judge Bell appears to have analysed South Australian law, the conservative approach he adopted in Air Tahiti Nui was correct.
Upcoming events
Just a brief announcement about a couple of upcoming conflicts-related events:
On 13 February, Professor Jürgen Basedow (Max Planck Institute for Comparative and International Private Law, Hamburg) will give a public lecture at VUW Law School offering a European perspective on the legal challenges posed by Brexit. This will be followed by a response from a common law perspective, by Professor Mary Keyes (Griffith University, Queensland). See here for details.
On 15 February, the Supreme Court will hear argument in Eilenberg v Gutierrez SC 78/2017, concerning the court’s jurisdiction to enforce foreign maintenance judgments. The Court of Appeal ([2017] NZFLR 471, [2017] NZCA 270) found that pt 8 of the Family Proceedings Act 1980 does not exclude the Court’s inherent jurisdiction to enforce arrears owing under foreign maintenance judgments at common law: see Jack Wass [2017] NZLJ 410 for analysis of the Court of Appeal’s decision. On 26 September 2017, the Supreme Court gave leave to appeal on this question, and on the question of whether enforcement of the Mexican judgment would be contrary to public policy (which had not been considered by the Court of Appeal).
Cross-border regulation of access to data: Microsoft Corp v US
The cross-border regulation of electronic data throws up many conflict of laws-related problems. Microsoft Corp v United States (“the Microsoft Ireland case”), a case pending before the US Supreme Court, is a recent example of such a problem and may have implications for data stored by US companies in New Zealand. The question to be decided is whether a warrant issued under the Stored Communications Act of 1986 (US) applies extra-territorially to data that is held by Microsoft overseas. Microsoft argues, inter alia, that extraterritorial warrants to produce data stored overseas may expose companies to conflicting legal obligations if the place of storage prohibits companies from disclosing the data.
The New Zealand Privacy Commissioner filed an amicus brief in the proceeding, arguing that the extraterritorial application of the Act should reflect the importance of comity, the presumption of territoriality and “the responsibility of each country to assert and respect the rights of those within its jurisdiction”. The brief notes that application of the Act to data held in New Zealand could entail civil and criminal liability under New Zealand law, and emphasises “the prerogative of each country – large or small – to apply its own law, including fundamental protections for the rights of its own citizens, to information within its own jurisdiction”.
Some of these concerns are now reflected in a new Bill, the Clarifying Lawful Overseas Use of Data (CLOUD) Act, which would provide a direct answer to the Microsoft Ireland case. For commentary on the Bill, see this post by Jennifer Daskal on Just Security (and see here for her earlier analysis of the conflict of laws issues).
The Supreme Court’s decision in Brown v New Zealand Basing Ltd: comments on the majority judgment
by Maria Hook (University of Otago)
The Supreme Court of New Zealand recently released its decision in Brown v New Zealand Basing Ltd [2017] NZSC 139, determining whether age discrimination provisions in New Zealand employment legislation applied to Cathay Pacific pilots based in Auckland. The employment contract, expressed to be governed by the law of Hong Kong, provided for a mandatory retirement age of 55. Pursuant to the Employment Relations Ac 2000 (NZ), however, the pilots could not be required to retire until they had reached the age of 65. The pilots brought a personal grievance claim against their employer, a Hong Kong based subsidiary of Cathay Pacific, in reliance on the Act.
As many readers will be aware, this is not the first time that the cross-border effect of the airline’s retirement age provisions has been the subject of litigation. In Lawson v Serco Ltd (Crofts) [2006] UKHL 3, [2006] 1 All ER 823, the House of Lords held that the right not to be unfairly dismissed under the Employment Rights Act 1996 (UK) applied to UK-based pilots of Cathay Pacific. But unlike the UK Act, the New Zealand Act does not contain an equivalent to s 204(1), which provides that it is immaterial for the purposes of the Act “whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom … or not”.
The Court held unanimously that the Act applied to the plaintiffs’ claim. A copy of the judgment is available here. In this post I would like to offer some comments on the majority’s reasons, which are concise, to say the least (running to just over 15 paragraphs).
The majority judgment
The majority considered that the question was one of statutory interpretation. The reason for this was “the sui generis nature of employment law” (at [77]), as recognised in the Act. Crofts was said to support this approach. The Court considered that Lord Hoffmann had taken a statutory interpretation approach to determining the territorial limits of the UK Act (at [79]), and that he had done so because of his “view of the nature of the employment relationship in law” (at [84]). The UK Act applied to pilots based within the jurisdiction. Section 204 of the UK Act was, on this approach, irrelevant (as were the choice of law clause and the Rome Convention).
There was also nothing in the New Zealand Act to suggest that the approach taken in Crofts was excluded in relation to its anti-discrimination provisions (at [86]). On the contrary, Parliament had given consideration to the extent of the territorial application of the Act, in the form of certain exceptions to the right to be free from unlawful discrimination (contained in ss 24 and 26 of the Human Rights Act 1993). These exceptions, which related to crews of ships and aircraft and work performed outside of New Zealand, did not catch the New Zealand-based pilots (at [88] and [89]). Section 238, a no-contracting out provision, reinforced this position (at [90]). Against this background, the majority considered that “it would be very odd to construe the 2000 Act to allow discrimination in the employment context in relation to persons in the [pilots’] position, solely on the basis of the parties’ choice of law” (at [91]).
Comments
There are a number of reasons why this analysis, in my view, is unpersuasive. First, it is not obvious why the sui generis nature of employment relationships in itself should justify resort to statutory interpretation (as opposed to conflict of laws methodology). If the issue in question cannot be characterised as a contractual matter, and hence does not squarely fall within existing choice of law rules, then arguably it is the court’s task to identify an appropriate choice of law rule: see Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC [2001] QB 825 (CA). In fact, insofar as personal grievance claims are concerned, the issue may be one of subject-matter jurisdiction rather than (bilateral) choice of law: see M Hook “The ‘statutist trap’ and subject-matter jurisdiction” (2017) 13 Journal of Private International Law 435. And if there is a concern that the issue touches on non-derogable matters of policy, the court should inquire whether New Zealand law has overriding mandatory effect and, hence, whether it operates as an exception to the ordinary choice of law process (see Dixon J in The Wanganui-Rangitikei Electric Power Board v The Australian Mutual Provident Society (1934) 50 CLR 581 at 601; Dicey, Morris and Collins on the Conflict of Laws (15 ed, Sweet & Maxwell, 2012) at [1-040]). This is not the same as saying that the issue is “sui generis”.
In other words, it would have been useful for the Court to frame its reasoning in terms of orthodox conflict of laws methodology (or else justify its departure from it, beyond a vague reference to employment relationships being “sui generis”). At the very least, the Court should have referred to its previous proposition that conflict of laws methodology extends to statutory issues (Ludgater Holdings Ltd v Gerling Australia Insurance Co Pty Ltd [2010] NZSC 49, [2010] 3 NZLR 713 at [24] and [33]). It is true that some conflicts scholars have disagreed with this proposition and consider the cross-border application of statutes to be a matter of interpretation (see, eg, A Briggs, “A Note on the Application of the Statute Law of Singapore” [2005] Singapore Journal of Legal Studies 189) – but again, the Court should have engaged openly with this difference in view, rather than rely on statutory interpretation as the implicit default (see fn 84).
The Court’s reference to Crofts does not shed any more light on the matter, given the decision is widely read as proceeding on the assumption that s 204 conferred overriding mandatory effect on the UK Act (see Dicey, Morris and Collins at [1-057]; L Merrett Employment Contracts in Private International Law (OUP, 2011), Ch 7). Conversely, it would be difficult to interpret the majority’s reasoning along similar lines – ie as an application of an overriding mandatory rule – given its view that s 204 did not play a crucial role in Crofts (see also the references in fn 84). For the majority, Crofts was simply authority for the proposition that employment relationships are sui generis, that the territorial scope of employment legislation is a matter of construction and (apparently) that the territorial scope includes pilots whose home base is within the jurisdiction (at [78]).
Second, the Court found support in the territorial exceptions in ss 24 and 26, treating them as evidence that Parliament had turned its mind to the territorial scope of the anti-discrimination provisions. These exceptions may offer broader clues on the cross-border application of the rights involved. But not for the reason apparently relied upon by the Court, which was that there was therefore nothing in the legislative scheme to exclude the Crofts approach for cases not falling within the exceptions.
Section 24 excludes the right to be free from discrimination from employment of “a person on a ship or aircraft, not being a New Zealand ship or aircraft, if the person employed or seeking employment was engaged or applied for it outside New Zealand”; section 26 allows discrimination “if the duties of the position in respect of which that treatment is accorded (a) are to be performed wholly or mainly outside New Zealand and (b) are such that, because of the laws, customs, or practices of the country in which those duties are to be performed, they are ordinarily carried out only by a person who is of a particular sex or religious or ethical belief, or who is in a particular age group”.
It is obvious that Parliament did turn its mind to the cross-border application of the Act in these sections. But this should not be construed as an implicit endorsement of the base test for cases falling outside of the exclusions. Why would Parliament provide for clear territorial exclusions in ss 24 and 26 but then leave the overall delimitation of rights for judges to work out (by way of statutory interpretation)? It is more likely that Parliament meant these provisions to be self-limiting: see further Hook (above) at 439. In other words, Parliament intended that the exclusions would take effect once New Zealand law had been determined to be applicable pursuant to ordinary conflict of laws rules. So ironically, the sections may offer support for the view that personal grievance claims for discrimination are subject to external limitations (in the form of conflict of laws rules).
(That ss 24 and 26 on their own are insufficient to delimit the right to be free from discrimination is obvious. Clearly New Zealand’s anti-discrimination provisions cannot apply in all cases that do not fall within ss 24 and 26. This approach would be over-inclusive and would lead to potentially absurd results. It would mean, for example, that a person (who is not working on a ship or aircraft) can bring a personal grievance claim for discrimination under the Act even if the relevant duties are duties to be performed wholly or mainly outside New Zealand, as long as the duties are not such that, because of the laws and customs of the country, they are ordinarily carried out only by a person who is in a particular age group.) So some limitation is needed, but contrary to the Court’s reasoning, this limitation is to be found in conflict of laws rules and not statutory interpretation.)
Third, the Court’s reference to s 238 is problematic. Section 238 provides that “[t]he provisions of [the Act] have effect despite any provision to the contrary in any contract or agreement”. The better view is that contracting out provisions of this nature do not apply to choice of law agreements (and that Parliament only intended this to be a domestic non-evasion rule): for an elaboration of this point in relation to s 238, see M Hook & J Wass “The Employment Relations Act and its effect on contracts governed by foreign law” [2017] NZLJ 80. But the Court’s reliance on s 238 also seems to run counter to its overall proposition. If s 238 “makes explicit the proposition … that the parties’ choice of law provision is irrelevant” (at [90]), would that not suggest that Parliament presumed the Act to be subject to ordinary conflict of laws rules (but sought to exclude party choice)?
In its final paragraph, the Court noted that it would be “very odd to construe the 2000 Act to allow discrimination in the employment context in relation to persons in the [pilots’] position, solely on the basis of the parties’ choice of law” (at [91]). With all due respect, this statement does not capture the breadth of the Court’s own reasoning. The Act’s personal grievance provisions applied because they were not considered to be subject to ordinary conflict of laws rules. The determining consideration was not that it was a choice of law clause – as opposed to choice of law rules in the absence of agreement – that was said to lead to Hong Kong law being applicable. Contrary to the Court’s suggestion, this conclusion was by no means an obvious one to reach.
New Zealand reforms choice of law in tort
by Jack Wass (Stout Street Chambers)
On 30 November 2017, the New Zealand Parliament passed the Private International Law (Choice of Law in Tort) Act 2017 (the Act). The Act fundamentally reforms New Zealand’s rules for choice of law in tort.
New Zealand’s choice of law rules were inherited from the United Kingdom, and it has always been assumed that the double actionability rule applied. New Zealand had become increasingly isolated in the common law world, as the United Kingdom, Australia and Canada abolished the rule.
Introduced as a Member’s Bill in 2016, the Act expressly abolishes the double actionability rule in favour of a general rule of the lex loci delicti, subject to the court’s power to displace that law where it is substantially more appropriate for another law to apply. In doing so, the drafters of the Act consciously followed the model of the Private International Law (Miscellaneous Provisions) Act 1995 (UK) (the 1995 Act). The 1995 Act was prepared after extensive consultation by the English and Scottish Law Commissions and proved robust in the two decades it operated before the Rome II Regulation came into force, and the drafters were wise to adopt its basic approach.
However, this statutory reform gave the New Zealand Parliament a unique opportunity to refine the approach of the 1995 Act, to account for difficulties and unanticipated issues that had arisen since 1995. Three notable changes may interest readers:
First, the Act applies to all torts. Where the 1995 Act controversially excluded defamation, the New Zealand Parliament was satisfied that the particular concerns that arise in the context of that tort could be addressed by the powers to displace the general rule and to disapply rules that would violate New Zealand public policy.
Second, the Act expressly contemplates the possibility of parties choosing the law applicable to non-contractual obligations. It is unclear to what extent the 1995 Act contemplates subjective choice of law in tort, since its rules are expressed exclusively in objective terms. The Select Committee was impressed by the proposition that commercial parties should be able to choose the law applicable to both contractual and related tortious claims (such as negligent misstatement), and added a provision specifying that nothing in the statute ‘precludes recognition or development of a choice of law rule giving effect to an agreement as to the applicable law.’ That leaves the courts free to recognise subjective choice of law in tort.
Third, the Act leaves the distinction between substance and procedure free to evolve. In Harding v Wealands [2007] 2 AC 1, the House of Lords held that the reference to ‘questions of procedure’ in the 1995 Act was required to be interpreted at the time the statute was enacted. This had the effect of fossilising the traditional distinction between substance and procedure and precluding the courts from recognising the more liberal approach followed, for example, in Australia. The New Zealand Act specifies that the conception of ‘procedure’ must be interpreted in accordance with the rules of private international law in force at the time of the case, thus ruling out the Harding v Wealands approach in New Zealand.
The Act is a rare example of legislative intervention in New Zealand private international law, and has brought choice of law in tort into line with the law in the United Kingdom, Australia and Canada. New Zealand has borrowed from the time-proven precedent of the United Kingdom’s legislation, while introducing valuable amendments.
The Law Commission’s Review of the Property (Relationships) Act 1976: Cross-Border Issues
by Oliver Allum
In November 2017, the New Zealand Law Commission released an Issues Paper on the division of relationship property. The Issues Paper asks whether the current rules in the Property (Relationships) Act 1976 (PRA) achieve a just division of relationship property.
While the review covers a broad spectrum of PRA issues, the Issues Paper specifically asks what should happen when people or property have a link to another country – either because the partners have ties with those countries or because they hold property overseas. This is becoming an increasingly common issue in New Zealand – and globally – due to increased international mobility, a rising number of international couples and the ease of owning property in other countries.
The Law Commission has identified that the current rules can lead to results that are inconsistent with the equal-sharing policy of the PRA, expensive, time-consuming, and contrary to the reasonable expectations of the parties.
Determining the applicable law
Section 7 of the PRA provides that the Act applies to all immovable property in New Zealand, and, if at the date of application one of the parties is domiciled in New Zealand, to all movable property wherever located. The Law Commission has identified a variety of issues with this approach:
- Domicile (the place that the person intends to make their permanent home) can be difficult to determine where a person has an ongoing connection with multiple countries;
- The exclusion of foreign immovable property can disadvantage one of the parties and/or increase the couple’s legal expenses. For example, if a couple owns immovable property in New Zealand and Scotland, a separate relationship property claim will have to be brought in both jurisdictions, which is costly. In addition, a New Zealand court is unable to order a larger share of the New Zealand property to be allocated to the disadvantaged party to compensate for the exclusion of the foreign property.
- Additionally, if at the time of separation, the couple had money in a bank account in Scotland in anticipation of buying foreign property, the money would be classed as movable property and therefore be within the relationship property pool. The distinction between movable and immovable property appears insignificant to the division of relationship property, yet can significantly impact the outcome of a claim.
- A foreign couple may not wish the PRA to apply to their immovable property in New Zealand (such as a holiday home). For example, the property consequences in a foreign country for de facto relationships may be different than the equal-split under New Zealand law. Applying the PRA to the New Zealand property may lead to consequences that were not reasonably expected by the foreign couple.
Agreements as to which law will apply
Section 7A of the PRA allows parties to expressly agree that New Zealand law will apply, or that the law of another country will apply. These agreements must be made before or at the time of marriage, civil union, or de facto relationship and must specify which law is to apply. As a result, agreements made after a relationship is entered into or that do not state which country’s law is to apply will not be upheld. For example:
- A French couple live together for 10 years before getting married in France, and at the time of marriage enter into an agreement stating that “the property acquired after marriage will be separate property”. They later permanently move to New Zealand. If the couple later separate in New Zealand, the agreement is unlikely to be upheld, and the New Zealand community of property regime will be applied to their immovable property in New Zealand, and all their movable property. This is for two reasons. First, the agreement was entered into after the de facto relationship had started, even though it was before marriage. Second, the agreement did not expressly state what law should apply.
This outcome does not reflect what the parties would have reasonable expected when they created the pre-nuptial agreement. There is no logical reason to set aside the agreement because it was made after the start of the de-facto relationship, but before marriage. There are no persuasive reasons for the PRA to require an agreement to be made at the start of a relationship. It is common for couples to live together in a de facto relationship for many years before marriage, and at the time of marriage to make formal property arrangements. It is also common for circumstances to change after marriage, such as a move overseas, which will make it desirable to specify which law is to apply to the couple’s relationship property.
Also, even though the agreement does not specify what law is to apply, there is an implication that the agreement is governed by French law, as it was entered into in France and complied with French law. The PRA currently provides no room to imply a choice of law into a pre-nuptial agreement, despite the reasonable expectations of the couple that their relationship property is governed by French law.
Other issues
- Setting aside choice of law agreements: If a couple has a valid choice of law agreement specifying a foreign law to apply to their relationship property, the courts have the power to set aside that agreement if it is contrary to justice and public policy. This test is broad and provides little statutory guidance as to which factors are to be taken into account.
- Which court should hear cases where a foreign law is applied: The Family Court is unable to hear proceedings where the PRA does not apply. This can occur where a s 7A agreement requires the application of foreign law. Transfers of proceedings to the District Court or High Court can be costly in both time and money. The process can be improved to reduce inefficiencies.
- Enforcement: Any orders by New Zealand courts over immovable property inside a foreign country are unlikely to be enforced by the foreign country. To give effective relief, the range of remedies in the PRA should be increased, for example the ability to order personal obligations such a financial order against a partner. This allows New Zealand courts to enforce the order, such as through contempt of court.
Additional comments – the unilateral nature of s 7
An issue not expressly identified by the Commission is that the unilateral nature of s 7 may have undesirable consequences. In the absence of a choice of law agreement the PRA specifies when New Zealand law applies to the relationship property claim. The PRA provides no room for the courts to apply foreign law to the parties’ relationship property if the PRA does not apply, or there is no valid pre-nuptial agreement specifying a foreign law. Issues that can arise under this approach include:
- Where the parties and property are present (but not domiciled) in New Zealand, New Zealand is likely the most appropriate forum to hear the dispute. However, because of the wording of the PRA, the New Zealand courts will be unable to determine the dispute by reference to either New Zealand or foreign law, and the dispute will have to be heard overseas.
- The PRA may be triggered by one of the parties’ domicile in circumstances where a foreign law is more closely connected to the relationship. For example, a New Zealand domiciliary may have worked overseas, met and married their partner overseas, sought legal advice on the property consequences of marriage by reference to overseas law, and have bought property overseas. If the New Zealander retained domicile, and brought a claim in New Zealand, the PRA would apply to all of the couple’s movable property.
A better approach is to replace s 7 with a multilateral choice of law rule, that can point towards the application of either New Zealand or foreign law. This means that, where New Zealand is an appropriate forum to hear the dispute, the court can apply the law that is most closely connected to the relationship, rather than just New Zealand law. This respects the parties’ reasonably expectations and promotes predictability of the law. If every country adopts a multilateral approach, the same law should be applied to the parties’ relationship property regardless of where the claim is heard.
Further information
More information on the review is available at http://prareview.lawcom.govt.nz/.
The Law Commission is accepting submissions on the Issues Paper until 7 February 2018.
Sections 317 & 321 of the Accident Compensation Act 2001
by Elsabe Schoeman (University of Pretoria)
I would like to congratulate Maria Hook on this wonderful achievement of establishing a new website for New Zealand conflict of laws/private international law. In the absence of a complete, up to date text on this area of New Zealand law, the website and the accompanying blog will go a long way towards keeping academics, practitioners and students informed of the latest developments. It will also provide foreign scholars with access to a resource for comparative research. I sincerely hope that this website will go from strength to strength!
It is well known that New Zealand often punches above its weight on the international front. Private international law is no exception – New Zealand’s unique and very comprehensive Accident Compensation Scheme has been the subject of litigation in various parts of the world, most notably in Australia, the US and the UK. As is often the case with statutory compensation regimes the provisions, that private international law matters crucially might turn on, are not sufficiently clear. Section 317(1) of the Accident Compensation Act 2001 is an example of a section that was probably not drafted with conflict of laws in mind:
317 Proceedings for personal injury
(1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of—
(a) personal injury covered by this Act; or
(b) personal injury covered by the former Acts.
Strictly speaking, this provision seems to bar proceedings for compensation for personal injury in a New Zealand court by someone covered under the Accident Compensation Scheme. But, does that open up the possibility of bringing proceedings in an overseas court, regardless of the particular plaintiff being covered under the Accident Compensation Scheme? This question has been the main issue in several individual and class actions brought in foreign fora. Increasingly, foreign courts, relying on expert opinions from New Zealand academics and practitioners, are endorsing the view that section 317(1) should be characterised as a substantive bar, which applies whenever New Zealand law is indicated as the lex causae (see eg James Hardie Co Pty Ltd v Hall (1998) 43 NSWLR 554, 579B, per Sheller JA). Furthermore, reading and interpreting the relevant section in the light of its context and purpose, the statutory bar is aimed at preventing double recovery and therefore it cannot be limited to “proceedings … in any court in New Zealand”.
But how are sections 317 and 321 to be reconciled? Section 321 explicitly contemplates the possibility of proceedings for personal injury being brought in New Zealand or elsewhere. More specifically, section 321 applies where a person, covered under the Scheme, has the right to bring proceedings for damages, or has been awarded damages, in New Zealand or elsewhere. The Accident Compensation Corporation may require that person to enforce the right to damages or to assign the right to the Corporation (s 321(1) and (2)) or, where that person has already received a sum of money, the Corporation is entitled to deduct those damages from entitlements or to recover entitlements (s 321(3) and (4)). It is submitted that section 321 does not present an avenue for bypassing the section 317(1) statutory bar – on the contrary, section 321 provides for cases where New Zealand law (and the substantive section 317(1) statutory bar) is not indicated as the applicable law in a conflict of laws dispute. For example, where an accident happened overseas between a New Zealand resident (the plaintiff) and a foreigner (the defendant), and the foreign court applies a lex loci delicti conflict rule, New Zealand law will not be indicated as the lex causae, since the accident did not happen in New Zealand. As a result, the section 317(1) statutory bar will not apply and, in order to avoid double recovery, the Accident Compensation Corporation may invoke section 321.
It is clear, therefore, that section 321 does not provide support for the argument that a plaintiff is able to bypass section 317(1) and institute proceedings abroad for personal injury covered under the Scheme. As observed by Mrs Justice Simler DBE in Allen and Others v Depuy International Limited [2015] EWHC 926 (QB), [50]: “I cannot see what purpose would have been served in allowing someone with cover under the Scheme in New Zealand, and a technical right to sue abroad (as a result of happenstance) simply to bypass the statutory Scheme.”
Maybe the time has come for section 317(1) to be reviewed and redrafted with private international law in mind. The phrase, “in any court in New Zealand”, though apposite for domestic law disputes, certainly does not lend itself to easy interpretation in foreign courts.
Welcome to “The Conflict of Laws in New Zealand”
Welcome to our blog The Conflict of Laws in New Zealand: News and Comments, featuring conflicts-related updates, notes, opinion pieces and research. Our aim is to make it easier for readers to stay on top of recent developments, and to stimulate discussion about the field. You may wish to subscribe to the blog by email (see the subscription function on the bottom left hand side of the menu).
Please feel free to comment on posts. If you would like to contribute to the blog as a guest author, please contact us (see the bottom of this post for our contact details). We welcome comments and submissions from anyone. Students, in particular, are encouraged to submit shorter works of research that may otherwise go unpublished. Submissions should be broadly relevant to the conflict of laws in New Zealand (but may focus on overseas developments if they are of general interest to a New Zealand audience).
The blog forms part of our online platform The Conflict of Laws in New Zealand, which also includes a searchable database of New Zealand scholarship on the conflict of laws, and links to sources of the New Zealand conflict of laws and other relevant materials. This project builds on the work of Professor Elsabe Schoeman, who first established the database at the University of Auckland. We are very grateful to Prof Schoeman and the University of Auckland for their support. We would also like to thank the New Zealand Law Foundation for its invaluable financial assistance in creating and developing the site.
Maria & Jack
Maria Hook (maria.hook@otago.ac.nz) University of Otago
Jack Wass (jack.wass@stoutstreet.co.nz) Stout Street Chambers
