Traditionally, the High Court of Australia has regarded the States of Australia as being
"separate countries" for conflict of law purposes and has applied, in a rather formalistic
manner, the English common law rules of private international law to resolve
intrafederation conflict of laws problems. This paper argues that this approach to
intrafederation conflict of laws is inappropriate. Instead, this paper argues that the High
Court should follow the approach of the Supreme Court of Canada as exemplified by its
decision in Morguard Investments Ltd v De Savoye. That is, the High Court should
forsake its formalistic reasoning and instead approach intrafederation conflict of laws
rules in a purposive way i.e. identify the purposes of the conflict of laws rules and ensure
that the rules operate in a manner that meets these purposes. The purposes and operation
of the intrafederation conflict of laws rules can only be understood in the context of the
Australian federal environment. Aspects of this environment, such as a unified national
legal system and a constitutional "full faith and credit" requirement, point to the
conclusion that Australia is "one country and one nation." The States of Australia should
be regarded as partners in federation and the conflict of laws rules that mediate the
relationship between the laws of the different States should reflect this overall unity.
Applying this purposive, contextual approach to the three major questions of the conflict
of laws, this paper suggests the following features of an Australian intrafederation
conflict of laws:
1. Unified substantive jurisdiction and broad judicial jurisdiction for Australian
courts with effective transfer mechanisms to ensure litigation is heard in the most
appropriate court;
2. The elimination, to the extent possible, of the "homeward trend" in choice of law
rules so that uniform legal consequences will attach throughout Australia to any
particular set of facts; and
3. The effective, unqualified enforcement of sister-State judgments throughout
Australia.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/10442 |
| Date | 05 1900 |
| Creators | Jackson, Andrew Lee |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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