Isaacman v King [No 2] and the Outer Limits of Long-Arm Jurisdiction – Conflict of Laws

By Dr Sarah McKibbin, College of Southern Queensland

The Supreme Court docket of New South Wales’ choice in Isaacman v King [No 2][1] is the form of case that tempts one to say ‘nothing to see right here’, and but it richly rewards a better look. On a standard software of Voth v Manildra Flour Mills[2] — the main Australian authority on discussion board non conveniens — Garling J stayed proceedings that tried to litigate a New York relationship dispute in Sydney, being ‘properly glad’ that the NSW Supreme Court docket was a clearly inappropriate discussion board.[3] The explanations, although temporary by design,[4] illuminate the transaction prices of jurisdictional overreach,[5] present how the Voth framework handles an excessive set of info, and provide a cautious case examine for empirical debates about Australian ‘parochialism’ in jurisdictional decision-making.

The info virtually learn like a hypothetical designed to check the outer limits of exorbitant, or long-arm, jurisdiction. A US biotech govt residing in New York sued his former companion, an Australian advertising and marketing guide, within the NSW Supreme Court docket for alleged negligent transmission of herpes simplex virus throughout their relationship in New York. The connection started and led to New York; the alleged transmission occurred there; the plaintiff’s prognosis and therapy occurred there; and the defendant, although Australian, lived abroad and was solely ordinarily resident in Victoria when in Australia. The plaintiff had a four-month interval in 2022 break up between Sydney, New South Wales, and Melbourne, Victoria, with visits to Queensland, whereas exploring enterprise alternatives for skincare ventures. He pointed to social friendships in Sydney and his one-off membership of the North Bondi Returned Companies League Membership.[6]

None of this impressed Garling J as a significant hyperlink to New South Wales. As Garling J readily noticed within the case’s earlier procedural judgment, there was ‘no connection in any respect between both of the events, and the pleaded reason for motion and the State of New South Wales.’[7] The RSL membership didn’t set up ‘any connection in any respect with the discussion board’.[8] The pleading itself underscored the foreignness of the dispute: by discover below New South Wales’ courtroom guidelines,[9] the plaintiff relied on New York regulation, particularly New York Public Well being Regulation § 2307, alongside widespread regulation claims out there below New York regulation.[10]

The keep evaluation proceeded squarely below Voth. Garling J recited the acquainted rules: the onus lies on the defendant; the query is whether or not the native courtroom is a clearly inappropriate discussion board, not whether or not another is extra handy; it’s related that one other discussion board can present justice; and the necessity to decide overseas regulation is just not conclusive however is a major issue.[11] The one express nod to the English check in Spiliada Maritime Company v Cansulex Ltd[12] got here by the Excessive Court docket’s personal endorsement in Voth of Lord Templeman’s aspiration for brevity in such purposes. [13] But Garling J famous that a problem arising in oral submissions required additional written submissions, precluding an ex tempore disposition, however nonetheless stored the explanations concise.[14]

On the info, the connecting components all pointed away from New South Wales. The conduct giving rise to the declare, the governing regulation, and the evidentiary base had been in New York. Neither get together had property in NSW, so any judgment, whether or not for damages or for prices, must be enforced elsewhere, compounding expense.[15] Garling J accepted, and the events didn’t dispute, that New York courts might train in personam jurisdiction over the defendant; that acceptance underpinned the conclusion that there was one other discussion board the place the plaintiff might ‘receive justice’.[16] The upshot was decisive however orthodox: the Supreme Court docket of New South Wales was a clearly inappropriate discussion board, and the proceedings could be stayed.[17]

The conditional order deserves to be recorded with some precision. The keep was to take impact seven days after publication of the judgment. Inside that very same seven-day interval, the defendant was to file and serve a written enterprise that, if the plaintiff introduced civil proceedings within the State of New York regarding the subject material of the NSW go well with, she wouldn’t plead any New York limitations defence, offered the plaintiff commenced in New York inside three months of the keep taking impact and offered the claims weren’t statute-barred when the NSW continuing was commenced.[18] Framed this fashion, the enterprise didn’t broaden the evaluation past Voth. It neutralised limitation prejudice, so long as the plaintiff didn’t delay commencing proceedings, and ensured sensible entry to the pure discussion board. Garling J additionally ordered the plaintiff to pay the prices of the discussion board non conveniens software.[19]

Two ancillary purposes had been left untouched. A movement looking for switch to the Supreme Court docket of Victoria and a late-filed non-publication movement weren’t decided.[20] Given the keep, it was not acceptable to go on to resolve additional points between the events. Garling J added that ordering a switch might impinge on the plaintiff’s personal decisions about the place to proceed subsequent; and with the matter stayed, non-publication orders served no helpful goal.[21]

Situating Isaacman v King [No 2] within the post-Voth jurisprudence helps clarify each the convenience and the bounds of the end result. Voth’s ‘clearly inappropriate discussion board’ check was introduced as solely a slight departure from the English Spiliada check,[22] however, as Richard Garnett’s early survey of the doctrine reveals,[23] its operation had been variegated.[24] Within the years instantly after Voth, Australian courts usually refused stays the place there have been significant Australian connections — even when the governing regulation or a lot of the proof was overseas — and typically gave beneficiant weight to native juridical benefits.[25] Mary Keyes’ evaluation within the Australian household regulation context underscores why this felt unpredictable: a forum-centric check with broad judicial discretion dangers certainty, predictability and price.[26] Understandably then, Keyes argues for an explicitly comparative, Spiliada-style inquiry that focuses on efficient, full and environment friendly decision, the events’ potential to take part, prices and enforceability.[27]

On the identical time, the Excessive Court docket tempered Voth in particular contexts. In Henry v Henry,[28]  the bulk successfully created a presumption in favour of a keep the place actually parallel overseas proceedings between the identical events on the identical controversy had been already on foot, explicitly invoking comity and the dangers of inconsistent outcomes.[29] In CSR Ltd v Cigna Insurance coverage Australia Ltd,[30] the Excessive Court docket went additional. Even with out id of points, the ‘controversy as a complete’ evaluation might render native proceedings oppressive the place their dominant goal was to frustrate entry to aid out there solely overseas.[31] These {qualifications} that, exterior the particular case of parallel litigation, Voth directs consideration to the suitability of the native discussion board in its personal phrases; however the place duplication looms within the type of parallel proceedings, the evaluation essentially broadens. That broader, comparative posture can also be what Ardavan Arzandeh reveals Australian courts truly do in observe, regardless of Voth’s formal language.[32]

Isaacman v King [No 2] belongs to a unique, extra easy strand in that story: the ‘little or no reference to Australia’ instances during which stays have been ordered as a result of the motion and the events’ controversy are overwhelmingly overseas.[33] In contrast to the contested margins Garnett identifies, there was no pleaded Australian statutory proper of a form typically relied on as a juridical benefit; no contest concerning the availability of a reliable overseas discussion board; and no tactical race between parallel proceedings. Garling J canvassed the basic connecting components, famous the New York regulation pleaded, recorded the sensible burdens of proof and enforcement, and concluded that New South Wales was clearly an inappropriate discussion board. That emphasis on concrete, case-specific connections and on penalties for the conduct and enforcement of the litigation suits each Keyes’ name for structured, predictable decision-making and Arzandeh’s demonstration that Australian courts, in substance, weigh the identical concerns as Spiliada.[34]

Two implications observe. First, the choice is a neat occasion of Voth doing precisely what it was designed to do when the discussion board is barely nominally engaged. It affords little buy for testing the tougher comparative query whether or not, on the margins, Voth’s rhetoric yields completely different outcomes from Spiliada’s ‘extra acceptable discussion board’ inquiry. That’s per Arzandeh’s view that the supposed hole is, in observe, vanishingly small.[35] Secondly, it provides texture to the sensible burdens that inappropriate discussion board decisions impose. Professional proof on New York regulation would have been required; witnesses and information are in the USA; neither get together’s property are in New South Wales; and the courtroom itself, even on this ‘straightforward’ case, couldn’t resolve the appliance wholly on the idea of oral submissions as a result of a problem warranted additional written argument. These are exactly the non-public and public prices Keyes highlights as causes to favour a clearer, extra comparative framework ex ante, somewhat than leaving calibration to ex publish discretion.[36]

There’s, then, a slim lesson and a broader one. Narrowly, Isaacman v King [No 2] confirms that Australian courts won’t entertain a declare whose solely native anchors are social relationships and what quantities to a meal-discount membership card. Broadly, it provides yet one more managed remark for comparative and empirical work: an excessive outlier that aligns with ‘no connection’ line of authority.[37] It additionally leaves open — certainly, usefully highlights — the necessity for information drawn from genuinely contested instances, the place juridical benefit and sensible adequacy are engaged on the proof, if we’re to evaluate how far Voth diverges, in observe, from its widespread regulation counterparts.[38]

Isaacman v King [No 2] due to this fact earns its place not as a result of it breaks doctrinal floor, however as a result of it reveals the doctrine working as supposed. The plaintiff’s Sydney friendships and RSL membership couldn’t anchor a transatlantic dispute in a NSW courtroom; New York regulation, proof and enforcement pointed inexorably elsewhere; and a conditional keep ensured that the plaintiff wouldn’t be procedurally deprived by being despatched to the discussion board the place the dispute belongs. If some discussion board non conveniens purposes might be resolved shortly,[39] this was not considered one of them. But it surely was, in the long run, a simple train of judicial self-discipline about the place litigation needs to be finished.

[1] [2025] NSWSC 381.

[2] (1990) 171 CLR 538 (‘Voth’).

[3] Isaacman v King [No 2] (n 1) [50].

[4] Voth (n 2) 565.

[5] See Andrew Bell, Discussion board Buying and Venue in Transnational Litigation (Oxford College Press, 2003; J J Spigelman, ‘Transaction Prices and Worldwide Litigation’ (2006) 80(7) Australian Regulation Journal 438, 441–3.

[6] Ibid [22].

[7] Isaacman v King [2024] NSWSC 1291, [85]. The sooner judgment handled preliminary procedural issues together with the plaintiff’s failed try and proceed pseudonymously.

[8] Isaacman v King [No 2] (n 1) [41]–[42].

[9] Uniform Civil Process Guidelines 2005 (NSW).

[10] Isaacman v King [No 2] (n 1) [14], [45]–[46].

[11] Ibid [35]–[36].

[12] [1987] AC 460.

[13] Isaacman v King [No 2] (n 1) [37], quoting Voth (n 2) 565. One wonders how usually Lord Templeman’s aspiration is realised.

[14] Isaacman v King [No 2] (n 1) [37]–[38].

[15] Ibid [43], [46]–[49].

[16] Ibid [47].

[17] Ibid [39]–[51].

[18] Ibid [4], [56].

[19] Ibid [56].

[20] Ibid [7], [52]–[53].

[21] Ibid [8], [52]–[55].

[22] Voth (n 2) 558.

[23] Richard Garnett, ‘Keep of Proceedings in Australia: A “Clearly Inappropriate” Take a look at?’ (1999) 23(1) Melbourne College Regulation Evaluate 30.

[24] Cf Ardavan Arzandeh, ‘Reconsidering the Australian Discussion board (Non) Conveniens Doctrine’ (2016) 65 Worldwide and Comparative Regulation Quarterly 475.

[25] Garnett (n 22) 39–48.

[26] Mary Keyes, ‘Jurisdiction in Worldwide Household Litigation: A Crucial Evaluation’ (2004) 27 UNSW Regulation Journal 42, 63–4.

[27] Ibid.

[28] (1995) 185 CLR 571.

[29] Ibid 590–1; Garnett (n 22) 52–4.

[30] (1997) 189 CLR 345.

[31] Ibid 400–1; Garnett (n 22) 57–9.

[32] Arzandeh (n 23) 485, 486.

[33] Garnett (n 22) 45–6.

[34] Keyes (n 26) 63–4; Arzandeh (n 23).

[35] Arzandeh (n 23) 491.

[36] Keyes (n 26) 59–60.

[37] Garnett (n 22) 45–6.

[38] On the necessity for empirical analysis on this space, see Christopher A Whytock, ‘Sticky Beliefs about Transnational Litigation’ (2022) 28(2) Southwestern Journal of Worldwide Regulation 284.

[39] Spiliada (n 12) 465.