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Articles for the keyword(s) "Onus of proof"

"Forum Conveniens – Basis of Jurisdiction in the Commonwealth"

BD Inglis, 1964

The author explores the Anglo-Common Law distinction between forum conveniens, as a prerequisite to assuming jurisdiction, and forum non conveniens, as a defence plea. An analysis of relevant case law illustrates that, in both forum conveniens and forum non conveniens scenarios, the same factors are considered and therefore forum conveniens constitutes the true basis of jurisdiction.

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"Jurisdiction, the Doctrine of Forum Conveniens, and Choice of Law in Conflict of Laws"

BD Inglis, 1965

With reference to the English law of jurisdiction, the author draws a clear distinction between forum conveniens as a prerequisite for leave to serve abroad (and the establishment of jurisdiction) and forum conveniens as a motion to strike out or stay an action after the defendant has been served within the jurisdiction, the latter having developed within the context of abuse of process proceedings. The author also explores the relationship between jurisdiction and choice of law, as well as the onus of proof in forum conveniens cases.

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"Jurisdiction in Trans-National Cases"

Paul Myburgh and Elsabe Schoeman, 2004

This article presents an analysis of the interpretation and application of the good arguable case on the merits test within the context of RR 219 and R 220 by New Zealand courts. Considering the differences between the New Zealand and English statutory jurisdictional dispensations, the authors criticise the New Zealand courts’ adoption of English authority in this context. The article also questions the wisdom of the separate leave regimes in RR 219 (without leave) and 220 (with leave) and calls for a redrafting of the rules.

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"Putting Plaintiffs Through Their Paces"

Andrew Beck, 1998

The author criticises the interpretation of the Court of Appeal decision in Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1989] 2 NZLR 50 by the Privy Council ([1990] 3 NZLR 513), which has led to the importation of the good arguable case on the merits as part of a two stage inquiry to establish jurisdiction under R 219. Instead, the good arguable case should only be invoked where there is a genuine dispute as to jurisdictional facts.

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"Forum Non Conveniens in New Zealand"

RJ Paterson, 1989

This article presents an in-depth account of the origin and development of the doctrine of forum non conveniens in England and its subsequent reception in New Zealand. The author analyses the interpretation and application of forum non conveniens in New Zealand case law with reference to service both within and out of New Zealand. Policy considerations, crucial to the exercise of the courts’ discretion in forum non conveniens matters, are discussed and evaluated in detail. The author concludes with a critical evaluation of the allocation and extent of the burden of proof in forum non conveniens cases and proposes a correction to the plaintiff-biased way in which the doctrine has been applied in New Zealand.