Garsec v His Majesty The Sultan of Brunei [2008] NSWCA 211

New South Wales Court of Appeal

CITATION: Garsec v His Majesty The Sultan of Brunei [2008] NSWCA 211

HEARING DATE(S): 2 April 2008

JUDGMENT DATE: 5 September 2008

JUDGMENT OF: Spigelman CJ at 1; Hodgson JA at 28; Campbell JA at 32

1. Leave to appeal granted. DECISION: 2. Direct Claimant within 14 days of the date of delivery of these reasons for judgment to file, as a Notice of Appeal, the Amended Draft Notice of Appeal already provided to the Court. 3. Appeal dismissed. 4. Claimant to pay costs of the Opponents of the application for leave to appeal, and of the appeal.

CATCHWORDS: PRIVATE INTERNATIONAL LAW – Stay of proceedings – Claimant sought order for specific performance of alleged agreement for sale of manuscript copy of Holy Koran – claims in alternative for breach of warranty of authority and negligent misstatement – Opponents filed Notices of Appearance – Choice of law – lower court found proper law of alleged contract and law governing claim in tort was law of Brunei – Art 84B Constitution of Brunei conferred immunity from suit on the Sultan in a personal and official capacity and on persons acting on behalf or under the authority of the Sultan in an official capacity – Court declined to exercise jurisdiction on grounds of clearly inappropriate forum – appeal – source of power of the Court to stay proceedings – power of court to dismiss proceedings which are oppressive, vexatious or an abuse of process – meaning to be attributed to "oppressive" and "vexatious" – relevant connecting factors – legitimate personal or juridical advantage – s 67 Civil Procedure Act 2005 – r 11.7 and r 12.11 Uniform Civil Procedure Rules – Part 10 r 6A and Part 11 r 8 Supreme Court Rules 1970 – whether r 11.7 UCPR imports principles of forum non conveniens as articulated from time to time in Australian law – whether constitutional immunity substantive or procedural for choice of law purposes – relevance of purposes for which distinction between substantive and procedural is made for choice of law purposes – significance of expert evidence as to substantive nature of immunity under law of Brunei – whether history and rationale of immunity is such that it has no relevant application outside the Courts of Brunei – whether unavailability of alternate forum for bringing proceedings was a decisive consideration against a finding of clearly inappropriate forum – whether unavailability of alternative forum amounts to legitimate juridical advantage – whether likelihood that substantive proceedings would require interpretation of a foreign constitution was a factor weighing against continuation of proceedings – legitimacy of bringing the substantive proceedings in New South Wales