Late Assessment Penalty

Unless a Special Consideration request has been submitted and approved, (a) a penalty for  lateness will apply – 10 marks out of 100 credit will be deducted per day for assignments submitted after the due date – and (b) no assignment will be accepted seven days (incl.weekends) after the original submission deadline. No late submissions will be accepted for timed assessments – e.g. quizzes, online tests.

Word limits will be strictly applied and work exceeding the word limit will not be graded.  Citations should conform to the current version of the AGLC

All assessments in this unit are to be submitted electronically.  Plagiarism detection software is used in this unit. Exams may only be submitted once - once submitted they cannot be withdrawn

With respect to moderation, detailed rubrics will be made available on iLearn.  All fail papers are double-marked by the Unit Convenor

Please Note that class scheduling is tentative depending on whether live tutorials are offered.

This unit is taught through a combination of lectures and tutorials.  The lectures are offered in iLearn on the Echo360 System

The prescribed casebook is Nygh's Conflict of Laws 10th Ed (2020). Please do not rely on access to e-copies in the Macquarie Library because those copies are limited and you will likely want access to the casebook during timed assessments and frequently all copies are in use. If students feel that they would also benefit from a textbook, Private International Law in Australia by Reid Mortensen et al 4th Edition (2019) may be helpful but will not be referred to in the course and is not required.

In addition to the casebook, we will have substantial recourse to other materials, including recently decided cases, journal articles and book chapters. These materials will be listed in iLearn by respective topic. Most of these materials will be available through Leganto.  Very recent cases will be available through online library resources.

Attendance at tutorials is an essential element of this course because exercises are conducted during tutorials and these exercises are directly relevant to questions raised in the assessments. The techniques addressed in the tutorials are expected to be utilised in responding to exam questions.  In effect class participation is rolled into the assessments. Because if you do not engage in the tutorials, you will be unable to complete the assessments.

If you cannot regularly attend Tutorials, you should not enroll in this course as exam topics usually rely on tutorials as opposed to lectures. An attendance role will be taken at each tutorial session. Students may, from time to time, attend tutorial sessions other than the one in which they are enrolled providing that seating is available. As part of the art of lawyering, conflict of laws issues are best addressed through problem solving.  Success in the examinations is invariably associated with active participation in the tutorials.  During the tutorials, we will review current cases that are not in the casebook and students will attempt to solve conflict of laws problems.  While participation is essential for satisfactory completion of the course, tutorial work is not graded - it is an opportunity to see how the doctrines actually work to solve problems.  It is a time for students to support each other as we work through challenging real-life situations based on recent Australian, UK, Canadian, EU and US case decisions. 

It is also anticipated that our class will engage in drafting a public submission and this will be a group activity. Engagement in this project will equip you for completing the assessments.

Students who are not prepared to attend and participate in tutorials should not enroll in this course as this course is based on real-world problem solving and that will be taught in the tutorials.

The following is a general and somewhat idealised version of what we will cover. The current version will be available on iLearn and will be subject to modification.

The study of conflict of laws has never been more essential than it is now. As Australian lawmakers struggle to deal with international media problems, the key issues of jurisdiction, forum non conveniens, anti-suit injunctions, choice of law, and recognition of judgments become essential tools of the lawyer and lawmaker.  These subjects constitute Conflict of Laws.

We will focus on the application of law to such matters as hate speech, online commercial transactions and privacy abuses where there is some element of multinational activity.

Conflict of laws is sometimes called private international law.  However, in Australia, Canada and the United States, conflict of laws is a more apt title because the situations are typically domestic as opposed to international. This, however, is changing, as Australia attempts to enforce its domestic laws against multi-national corporations.

Conflict of laws issues are central to the actual practice of law. Essentially conflicts, as it is commonly known, deals with many aspects of procedural law - some of which may be outcome determinative.  The most well-known aspect of this subject is the subject of choice of law.  This is the doctrine that enables a lawyer to advise the court as to the state or national body of law that is to be applied to a dispute. The subject also deals with jurisdiction, injunctions in aid of jurisdiction, restraints on local proceedings and enforcement of judgments. Conflicts may be unique among law courses because it is perhaps the only subject in which non-lawyers rarely have any knowledge or even awareness of the concept’s existence. It is not unfair to say the conflict of laws is a subject known only to the legal profession and is essential to the lawyer's art. While frequently addressed in terms of disputes (litigation), conflict of laws is an essential body of law for legal practitioners who draft agreements because many conflicts issues are subject to party agreement.

Conflicts is not just a matter of following rules. Rather, knowledge of conflicts guides skilled practitioners in obtaining better outcomes for their clients. While based on legal theory, in practice, conflicts permits lawyers to attempt to utilise the most desirable venues and bodies of law to benefit their clients’ interests. Conflict of laws is somewhat of a misnomer; the actual focus is on personal jurisdiction, choice of law or forum selection and this unit will examine essential concepts relating to these issues.

Using a problem-based approach, this course will examine a variety of circumstances to see how conflicts theory can be strategically applied to influence the ultimate outcome of a dispute. Perhaps the centrality of a working knowledge of conflict of laws is exemplified by the following examples:

A client believes that she has been defamed by a posting on a social media website. The individual who made the posting is unknown (but known to the website operator). The corporation that owns the social media website is located in the United States and does not have any offices in Australia but does have a local subsidiary.

The client wants you to file suit against the social media company in NSW. Does the court have (1) in personam jurisdiction (jurisdiction over the person of the defendant), (2) which state's (nation's) laws of defamation would apply, and (3) how could any judgment in your client's favour be enforced?

Or, in a more mundane situation -

An independent contractor called Alan resides in Victoria. He is assigned projects by Apex Corporation.  Apex trained him in Victoria and required him to purchase various specified equipment including a stepladder manufactured by Bosco Specialties in Brisbane, Queensland.  Most of the work performed by Alan for Apex is in Victoria.  While working on a project for Apex just across the border in New South Wales, Alan fell from the stepladder and sustained extremely serious injuries.  Alan believes that he fell because the ladder was defectively designed and manufactured.  Alan's claim against Apex has been resolved through Workers' Compensation and is not in issue.

Alan presents himself to you at your law office in Victoria.  A decision is made to proceed by way of litigation in the Supreme Court of Victoria against Bosco Specialties.  The plaintiff was tardy coming to you for advice but you ascertain that the statute of limitations for pursuing an action in tort is not time barred under Victorian law.  But, you also note that under both NSW and Queensland laws, the action appears to be time-barred.  If the action is commenced in Victoria, will it likely be time-barred?

While the common law of tort is uniform across Australia; statutes of limitation vary among the States.  Here, the correct statute of limitation may be outcome determinative.  While this seems like a rather mundane personal injury matter, it presents classic conflict of laws issues that will likely decide whether the matter may proceed or will be time-barred.

In both of these situations, conflict of laws provides the tools necessary to reach the correct results

Tentative Weekly Schedule - Readings will also include materials listed on iLearn and available through Leganto. recent court decisions will be made available through iLearn.

This year, the Research Essay will be joined to the Final Test - which will be oral. After submitting the Research essay on 16 October 2021, students will schedule individual sessions on Zoom in the period 4 November through 7 November in which the student will be questioned with respect to the Research Essay. This VIVA session is new to Conflict of Laws. It will be addressed during the course though many students will be familiar with this assessment format. Further guidance and instructions will be provided in iLearn

Now, more than ever, the focus will be on the Internet. Conflict of Laws issue present themselves in virtually every dispute surrounding the Internet.  We will focus on these issues as caselaw develops in Australia. In this regard, an integral aspect of this course is the discussion of new caselaw from Australian, Canadian, American, British or EU Courts - this necessarily changes each year. 

While the Internet is the focus of Weeks 12 and 13, it has become so dominant an issue that we will deal with it on an ongoing basis from Week 1.  Social media and gaming will also receive attention throughout the course.