Choice of law and jurisdiction 

Whenever a dispute has a genuine connection to more than one legal system — because the parties live in different places, the events occurred across a border, or a contract was made in one place to be performed in another — two separate legal questions arise. Students very commonly run these two questions together, but keeping them apart is the single most important skill in this area, generally called conflict of laws or private international law.

Two distinct questions

The first question is jurisdiction: does a particular court have the authority to hear and determine this dispute at all? Jurisdiction is about the power of the forum — the court actually seised of the case — to deal with the matter and the parties before it.

The second question is choice of law, sometimes called the applicable law question: once a court does have jurisdiction, which legal system's substantive law should it apply to decide the dispute on its merits? A court can validly have jurisdiction over a matter while applying the substantive law of an entirely different legal system to resolve it. A court sitting in one place does not necessarily apply its own place's law to every issue before it.

These questions are asked sequentially and answered by different rules. A court must first establish that it has jurisdiction before the choice-of-law question even arises; and establishing jurisdiction says nothing, by itself, about which system's law will govern the outcome.

Jurisdiction

A court's jurisdiction typically rests on some recognised connecting factor between the dispute, the parties, and the forum — for example, that a defendant can be served within the jurisdiction, that a defendant submits to the court's authority by participating in the proceeding, or that the dispute is sufficiently connected to the forum on some other recognised basis. Where more than one court could plausibly claim jurisdiction, a further question can arise as to whether a particular forum is a suitable or appropriate one to hear the matter, distinct from whether it technically has power to do so.

Choice of law

Once jurisdiction is settled, the forum applies its own choice-of-law rules — rules that are themselves part of the forum's own law — to work out which system's substantive law governs each issue in the dispute. Different categories of dispute commonly attract different connecting factors: contractual disputes often look to the law the parties intended to govern their agreement or the law with the closest connection to it, while disputes about wrongs committed against a person or their property often look to the law of the place where the wrong occurred, the rule confirmed for Australian tort claims (including interstate ones) in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.¹

An important companion distinction is between substance and procedure. A court always applies its own procedural law — the law of the forum, sometimes called the lex fori — regardless of which system's law governs the substantive issues in the case. Only substantive questions are subject to the choice-of-law exercise; procedural questions, such as how evidence is presented or how a proceeding is conducted, are governed by the forum's own law as a matter of course.

Domestic as well as international

These are not purely international questions. Australia is a federation of states and territories that each maintain their own body of law, so the same jurisdiction and choice-of-law questions can arise entirely within Australia — for example, where an accident occurs in one state but the proceedings are brought in the courts of another. Australian courts address these interstate conflicts using conflict-of-laws reasoning of the same basic kind used for genuinely international disputes, adapted to the federal setting, including cooperative arrangements between Australian courts designed to reduce jurisdictional friction between the states.

Defamation is carved out of that rule by statute. Section 11 of the Defamation Act 2005 (SA)² supplies its own rule: s 11(1) applies "the substantive law that is applicable in that area" where the matter is published wholly within one Australian jurisdictional area, which sits comfortably with Pfeiffer. Section 11(2) is the departure — for "a multiple publication of matter in more than one Australian jurisdictional area", the law applied is that of the area "with which the harm occasioned by the publication as a whole has its closest connection". One law for the whole publication, chosen by closest connection rather than by the place of each tort. The provision is in substantially the same terms in the other uniform Defamation Acts.

Pfeiffer stated the rule for intranational torts and put international cases expressly to one side. Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491³ closed the gap two years later: the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ accepted at [75] that the rule "should be extended to foreign torts, despite the absence of the significant factor of federal considerations", and without any "flexible exception". Cite Pfeiffer for the intranational rule and Zhang for the foreign one.

What the lex loci delicti refers to was taken up in Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331⁴. Gummow and Hayne JJ restated that no flexible exception is recognised ([64]) and held that, at least where the law of the place of the wrong selects the applicable law by a connecting factor other than place, such as nationality or domicile, the lex loci delicti is the whole of the law of that place and not only what that place would treat as its domestic law ([102]). The forum then applies its own law if that place would, and the law of a third jurisdiction if that place would look there ([103]). The appeal was allowed by five Justices to two on reasons given separately, so attribute the statement to Gummow and Hayne JJ: Heydon J stated the same view "in this case at least" ([278]), and Gleeson CJ rejected the argument that Zhang requires the foreign law's provisions for foreigners to be ignored ([13]). Where the place of the wrong selects the applicable law by a connecting factor other than place, ask what that place's law, including any rule it has for selecting the law, would apply to the question.

Applying this in a problem question

1. Confirm the dispute has a genuine connection to more than one legal system — identify each system connected to it and why.
2. Ask the jurisdiction question first: does the court in which proceedings are, or might be, brought have power to hear this dispute?
3. Only once jurisdiction is answered, ask the choice-of-law question separately: which system's substantive law governs each issue?
4. Do not assume the forum automatically applies its own substantive law — state the connecting factor that points to the applicable law.
5. Separate substantive issues (subject to choice of law) from procedural issues (always governed by the law of the forum).
6. Note whether the conflict is international or interstate, since the specific rules may differ even though the underlying questions are the same.