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Articles for the keyword(s) "Service abroad without leave"

"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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"After The Spiliada – Forum Non Conveniens in New Zealand and Australia"

Scott Gallacher, 1996

This article analyses the disparate development of forum non conveniens in New Zealand and Australia. The author discusses potential differences in result, depending on whether the "more appropriate forum" test, adopted in New Zealand, or the "clearly inappropriate forum" test, adopted in Australia, is applied.

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"Conflict of Laws"

RJ Paterson, 1992

The author reviews significant Conflict of Laws cases from 1990 and 1992. The review focuses on the existence of jurisdiction, submission to jurisdiction and subject matter jurisdiction, as well as the relevance and application of forum non conveniens with reference to protest to jurisdiction, jurisdiction clauses, lis alibi pendens, service within New Zealand, and summary judgment proceedings, as well as family law proceedings and international child abduction cases. The author also covers the enforcement of foreign judgments at common law, as well as by statute.

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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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"Rule 219: The ‘Good Arguable Case’ Requirement"

Andrew Beck, 2002

The author criticises the adoption of the "good arguable case on the merits" test in respect of R 219 by New Zealand courts, as a result of erroneous reliance on English case law authority. Instead of facilitating the service of proceedings on foreign defendants this test, as well as the fact that the plaintiff carries the burden of proof, completely defeats the policy underlying service abroad without the leave of the court.

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"Service Abroad in Enforcement Proceedings"

Elsabe Schoeman, 2007

In Commerce Commission v Koppers Arch Wood Protection (NZ) Ltd [2007] 2 NZLR 805 jurisdiction in respect of offences committed by foreign defendants in terms of the Commerce Act 1986 was founded on R219(h), which allows for service abroad without leave of the Court. In a discussion of the case, the author comments on the application of the “good arguable case on the merits” test within the context of R219. The author also argues that statutory offences present unique challenges in terms of jurisdiction and enforcement and should rather be dealt with under R220, in terms of which the Court can exercise its discretion to grant leave after having considered all relevant factors.

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"The Internet – A New World without Frontiers"

Clive Elliot, 1998

With reference to American case law, the author discusses jurisdictional issues relating to internet activity. Consideration is given to the potential implications of the application of New Zealand rules of jurisdiction within this context.

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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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"Damages and Territorial Jurisdiction: Judicial Interpretation of Rule 219(a) and the Case for Reform"

Giora Shapira, 2006

The author critically examines New Zealand case law on R 219(a) with specific reference to: (1) the judicial creation of a “good arguable case on the merits” test, and (2) the broad interpretation of “damages” within the context of trans-national tort actions. The author advocates law reform through the abolition of the “good arguable case” requirement and a reformulation of R 219(a), based on a comparison with other jurisdictions, to bring it in line with modern international trends.

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"Horse and Buggy on the Electronic Highway: Transnational Internet Defamation in the High Court of Australia"

Paul Myburgh and Rosemary Tobin, 2003

This article presents a critical analysis of the decision in Dow Jones & Co Inc v Gutnick (2002) 194 ALR 433, [2002] HCA 56. The authors focus on the implications of the common law multiple publication rule and problems in locating the place of the tort for purposes of jurisdiction and choice of law in transnational internet defamation. Disappointment is expressed at the unwillingness of the majority to engage with and reformulate traditional defamation law principles in recognition of the revolutionary nature of internet communications.

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“Service Abroad without Leave: Taking Seaconsar Seriously’’

Elsabe Schoeman, 2010

The New Zealand High Court Rules in respect of service abroad without leave (r 6.27) now incorporate the “serious issue to be tried on the merits” test. This article examines the important difference between the “good arguable case” and “serious issue to be tried on the merits” tests using Lord Goff’s authoritative statements in Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran. The author urges the Courts to embrace Lord Goff’s clarification as an opportunity to provide certainty and accuracy in relation to the interpretation and application of the “serious issue to be tried on the merits” test.

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"Service Out of the New Zealand Jurisdiction Without Leave: The Old Order Changeth"

PRH Webb, 1980

This chapter analyses the New Zealand rules on service out of jurisdiction without leave, in the context of the proposed new Code of Civil Procedure.