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Private International Law
in Australia

Fourth Edition
Private International Law
in Australia
Fourth Edition

Reid Mortensen
BCom (Hons I), LLB (Hons I), PhD (Qld)
Professor of Law and Head of School, School of Law and Justice,
University of Southern Queensland
Lawyer, Supreme Court of Queensland

Richard Garnett
BA, LLB (UNSW), LLM (Harv)
Professor of Law, Melbourne Law School,
University of Melbourne

Mary Keyes
BA, LLB (Hons) (Qld), GCert Higher Education, PhD (Griffith)
Professor of Law
Griffith Law School, Griffith University

LexisNexis Butterworths
Australia
2019
 LexisNexis
AUSTRALIA LexisNexis Butterworths
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© 2019 Reed International Books Australia Pty Limited trading as LexisNexis.

First edition, 2006 (reprinted 2009, 2010); second edition, 2011; third edition, 2015.
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Visit LexisNexis Butterworths at www.lexisnexis.com.au
 Contents
Detailed Contents vii
Preface xvii
Table of Cases xix
Table of Statutes lvii

PART 1 Introduction to Private International Law 1

Chapter 1 Scope, Development and Purpose 3

PART 2 Jurisdiction and Judgments 25

Chapter 2 Personal Jurisdiction 27
Chapter 3 Jurisdiction: Exceptions and Immunities 75
Chapter 4 Restraints on Proceedings 91
Chapter 5 The Effect of Foreign and Interstate Judgments 133
Chapter 6 International Arbitration 171

Part 3 Choice of Law Method 189

Chapter 7 Choice of Law Method 1: The General Part 191
Chapter 8 Choice of Law Method 2: Complications and Exceptions 215
Chapter 9 Proof of Foreign Law 249
Chapter 10 Personal Connections 265
Chapter 11 Constitutional Limits on Choice of Law 299
Chapter 12 Statutes 315

Part 4 International Family Law 331

Chapter 13 The Validity of Marriages and Other Adult Relationships 333
Chapter 14 Separation, Dissolution and Annulment of Marriage 367
Chapter 15 Parental Responsibility 387
Chapter 16 Property and Maintenance 423

Part 5 Choice of Law for Obligations 437

Chapter 17 Contracts 439
Chapter 18 Torts 469
Chapter 19 Equitable Claims and Trusts 491

v
 Private International Law in Australia
PART 6 Choice of Law for Property 503
Chapter 20 The Location and Classification of Property 505
Chapter 21 Transfer of Property between Living and Corporate Persons 517
Chapter 22 Succession to Property on Death 533

PART 7 International Company Law 557

Chapter 23 International Company Law 559
Chapter 24 Corporate Insolvency 573

Index 585

vi
 Detailed Contents
Preface xvii
Table of Cases xix
Table of Statutes lvii

PART 1 Introduction to Private International Law 1

Chapter 1 Scope, Development and Purpose 3
Themes of private international law 3
Historical development 7
Ancient approaches 7
Scholarly development 8
Institutional writing as a source of law 12
Judicial development in England 13
An Australian private international law 15
Objectives 19
Consistency 20
Particular justice 22
International and interstate comity 23

PART 2 Jurisdiction and Judgments 25

Chapter 2 Personal Jurisdiction 27
Introduction 27
Personal jurisdiction at common law 28
Presence 28
Submission 32
Personal jurisdiction in interstate cases 34
Diversity jurisdiction 34
Service and Execution of Process Act 1992 (Cth) 37
Cross-vested jurisdiction 38
Personal jurisdiction in international cases 45
Jurisdiction over New Zealand defendants 45
Personal jurisdiction in international cases not involving
New Zealand 45
Harmonised rules of court 50
Grounds of jurisdiction — personal connections 51
Grounds of jurisdiction — submission to the jurisdiction 51
Grounds of jurisdiction — contracts 52
Grounds of jurisdiction — wrongs 56

vii
 Private International Law in Australia
Grounds of jurisdiction — application of forum legislation 65
Grounds of jurisdiction — property 66
Grounds of jurisdiction — probate and administration 68
Grounds of jurisdiction — foreign judgments and awards 69
Grounds of jurisdiction — injunctions, interim and
ancillary relief, freezing orders 69
Method of service 70
Conclusion 73
Chapter 3 Jurisdiction: Exceptions and Immunities 75
Introduction 75
Foreign immovables 75
The Moçambique principle 75
Australian Capital Territory 78
New South Wales 78
Personal actions relating to immovables 79
Reform 80
Foreign state immunity 80
Foreign states 81
Exceptions to immunity 82
Immunity from execution 86
Diplomatic and consular immunity 87
Diplomatic immunity 87
Consular immunity 88
Duration and waiver 88
Chapter 4 Restraints on Proceedings 91
Introduction 91
International proceedings 91
Mandatory rules 92
Jurisdiction agreements 94
Forum non conveniens 101
Procedure 108
Interstate proceedings 112
Interstate proceedings in superior courts 112
Forum non conveniens 122
Interstate proceedings in intermediate and inferior courts 122
Restraining proceedings in another court 124
Restraining proceedings in a foreign court 124
Restraining proceedings in another Australian or a
New Zealand court 130
Reform 130
Conclusion 131

viii
 Detailed Contents 
Chapter 5 The Effect of Foreign and Interstate Judgments 133
Introduction 133
Recognition and enforcement of judgments
at common law 136
International jurisdiction 137
Final and conclusive 143
Fixed sum 143
Identical parties 145
Fraud 145
Natural justice 148
Public policy 149
Penal and revenue judgments 150
Incompatible judgments 150
Foreign competition judgments 151
Estoppel and foreign judgments 151
Registration of foreign judgments 153
Registration — conditions and effect 156
Setting aside registration 158
International jurisdiction 159
Identical parties 163
Fraud 163
Natural justice 163
Public policy 164
Incompatible judgments 164
Registration of interstate judgments 165
Full faith and credit 165
Registration procedures 167
Registration of New Zealand judgments 168
Chapter 6 International Arbitration 171
Introduction 171
Enforcement of international arbitration agreements 171
Writing requirement 172
A matter capable of settlement by arbitration 172
Applicable law in international arbitration 178
Law governing the substance 178
Law governing the arbitration agreement 179
Law governing the arbitral procedure 180
Enforcement of arbitral awards 182
Foreign arbitral awards 182
Enforcement of awards under the Model Law 187
Investor–state arbitration 188

ix
 Private International Law in Australia
Part 3 Choice of Law Method 189
Chapter 7 Choice of Law Method 1: The General Part 191
Introduction 191
Choice of law and internal rules 192
The identification of a conflict of laws 192
Identifying the possibly relevant legal systems 193
The internal rules of the possibly relevant systems 193
A conflict of laws 193
The classification of the subject matter 194
The subject matter 194
Classifications 196
The law of classification 198
The classification of substantive or procedural law 200
General principles of procedural law 200
Particular issues 203
The identification of the choice of law rule 213
The application of the law of the cause 213
Which aspects of the law of the cause? 213
Chapter 8 Choice of Law Method 2: Complications and Exceptions 215
Introduction 215
Complications of choice of law method 215
Dépeçage 215
The incidental question 216
Renvoi 219
Exclusion of unacceptable laws 231
Unrecognised states 231
Penal laws 232
Revenue laws 234
Expropriation laws 235
Foreign governmental interests 238
Public policy 240
Chapter 9 Proof of Foreign Law 249
The status of foreign law 249
The presumption of identity 251
Presumption of identity — interpretation of foreign statutes 253
Foreign law as fact and precedent 255
Evidence of foreign law 256
Expert witnesses 256
Judicial notice 257
Reference of a question of foreign law 258
Documentary sources of law 261
Determination of foreign law 262
Proof of interstate law 263
x
 Detailed Contents 
Chapter 10 Personal Connections 265
Introduction 265
Domicile 266
Domicile of origin 269
Domicile of dependence 272
Domicile of choice 274
Nationality 278
Australian citizenship 279
Foreign nationality 285
Multiple nationalities 288
Residence 288
Residence 289
Ordinary residence 289
Habitual residence 291
Reform 295
Chapter 11 Constitutional Limits on Choice of Law 299
Introduction 299
Full faith and credit 300
Full faith and credit: No public policy exclusion of
interstate law 300
Full faith and credit: Effect on the content of
the choice of law rule 302
Interstate discrimination 310
The Australian Constitution in choice of law:
Status and future 313
Chapter 12 Statutes 315
Introduction 315
Forum statutes 316
Extraterritorial reach of statutes 316
Statutory choice of law rules 316
Self-limiting provisions 317
Generally-worded statutes 318
Statutes of other places 324
Foreign statutes 324
Interstate statutes 325
Interstate statutes under the cross-vesting scheme 326
Operation of s 11(1)(b) 326

Part 4 International Family Law 331

Chapter 13 The Validity of Marriages and Other Adult Relationships 333
Introduction 333
The legal concept of marriage 335
Voluntary union 336
xi
 Private International Law in Australia
Indefinite duration 337
The sex or gender of the parties 337
Other recognised adult relationships 339
Monogamous union 340
The common law choice of law rules 343
The formal validity of marriage 344
The essential validity of marriage 349
Other issues 353
Marriage: The present choice of law rules 355
Marriages solemnised in Australia before 7 April 1986 357
Marriages solemnised in Australia from 7 April 1986 358
Marriages solemnised outside Australia 359
The recognition of other interstate and
foreign adult relationships 364
Chapter 14 Separation, Dissolution and Annulment of Marriage 367
Introduction 367
Jurisdiction 368
Dissolution of marriage 368
Annulment of marriage 368
Choice of law 372
Dissolution 372
Annulment 373
Void, revoked and terminated adult relationships 373
Recognition of decrees 373
Australian decrees 373
New Zealand decrees 373
Sources of rules for recognising foreign decrees 374
Unrecognised foreign decrees 382
Natural justice 383
Public policy 384
Failure to comply with the foreign law 385
Chapter 15 Parental Responsibility 387
Introduction 387
Jurisdiction 389
Jurisdictional competence 389
Exercise of jurisdiction 397
The application of the Child Abduction Convention 400
Habitual residence 400
Child Abduction Convention countries 401
General approach 401
Central authorities 402
Wrongful removal or retention 403
Return 406

xii
 Detailed Contents 
Settlement into new environment 406
Excusable removal or retention 407
Access 414
Choice of law 415
Part VII of the Family Law Act 415
Child Protection Convention 415
The recognition of foreign parenting orders 418
The general law 418
The registration of foreign parenting orders 420
Chapter 16 Property and Maintenance 423
Introduction 423
Jurisdiction 424
Jurisdiction as of right 424
Parties 424
Limits on jurisdiction 425
Discretionary stay of proceedings 426
Anti-suit injunctions 427
Stay of trans-Tasman proceedings 428
Courts 430
Choice of law 430
Recognition and enforcement of foreign property and maintenance
orders 431
Property orders 431
Maintenance 432
Overseas maintenance orders registered before 1 July 2000 433
Overseas maintenance orders registered from 1 July 2000 433
New York Maintenance Convention 434

Part 5 Choice of Law for Obligations 437

Chapter 17 Contracts 439
The scope of the proper law 439
Classification 440
Time of attribution 441
The determination of the proper law 443
Subjective proper law 443
Objective proper law 448
Change of proper law 451
Multiple proper laws 453
Dépeçage 453
Incorporation 454
Formation and performance 455
Formation 455
Performance 457

xiii
 Private International Law in Australia
Related claims 461
Specific contracts 461
International sea carriage of goods contracts 461
International sale of goods contracts 462
Insurance contracts 462
Consumer contracts 463
Consumer credit contracts 464
Contracting out 465
Reform 465
Chapter 18 Torts 469
Introduction 469
The general tort choice of law rule 469
Renvoi 471
The place of the tort 473
The general rule 473
Negligence 474
Misrepresentation 475
Defamation 476
Maritime torts 476
Choice of law for defamation 477
Defamation within Australia 477
Foreign defamations 479
Circumstances in which the governing law
may not be applied 479
Procedural rules 479
Public policy 480
Claims and defences under forum legislation 481
Classification of specific issues 482
Survival of actions 482
Wrongful death 483
Nominal defendants 483
Direct actions against insurers 484
Interspousal immunity 484
Indemnity 485
Contribution 486
Insurers’ rights of subrogation 487
Conversion 487
Concurrence of liability 488
Contractual and statutory defences to claims in tort 489
Chapter 19 Equitable Claims and Trusts 491
Introduction 491
Jurisdiction 491
Jurisdiction in equity 491

xiv
 Detailed Contents 
Choice of Law — Equitable Claims 492
Equitable defences 496
Equitable remedies 496
Choice of Law — Trusts 497
Hague Trusts Convention 498
Trusts outside the scope of the Hague Trusts Convention 500

PART 6 Choice of Law for Property 503

Chapter 20 The Location and Classification of Property 505
The method of classifying property 505
Immovables and movables 505
The location of property 507
Tangible property 507
Debts 508
Other intangible property 510
The classification of property 512
Tangible property 513
Debts 514
Other intangible property 514
Chapter 21 Transfer of Property between Living and Corporate Persons 517
Introduction 517
Transfer of immovable property 518
Formal validity 518
Essential validity 518
Capacity 519
The contract requiring the transfer 519
Transfer of movable property 520
Tangible property 520
Debts 524
Other intangible movable property 530
Chapter 22 Succession to Property on Death 533
Introduction 533
Executors and administrators 534
Jurisdiction 534
The appointment of a personal representative 535
Scission 535
Re-sealing of foreign and Commonwealth grants 537
Refusal to confirm grants 537
Representative’s accountability 538
Administration 538
Principal administration 539
Ancillary administration 540
Beneficial succession 540
xv
 Private International Law in Australia
Immovable property 541
Movable property 547
The exercise of powers of appointment 552
General and special powers 552
Formal validity 552
Capacity 553
Essential validity 553
Interpretation 554
Revocation 554
Reform 555

PART 7 International Company Law 557

Chapter 23 International Company Law 559
Introduction 559
Jurisdiction 560
The power to exercise jurisdiction 560
Courts 561
Restraints on companies’ proceedings within Australia 562
Restraints on trans-Tasman companies’ proceedings 563
Restraints on companies’ proceedings in international cases 563
Choice of law 565
The validity of incorporation 567
Capacity and powers 567
Members’ rights and liabilities 568
Internal management 568
Recognition and enforcement of foreign companies’ orders 570
Chapter 24 Corporate Insolvency 573
Introduction 573
The Model Law 573
Overview 573
Access of foreign representatives and creditors to
Australian courts 574
Recognition of foreign insolvency proceedings and relief 575
Concurrent insolvency proceedings and judicial cooperation 579
Winding up of companies 582

Index 585

xvi
 

Preface to the Fourth Edition

Since the last edition was published, Australian private international law has continued
to consolidate its somewhat unique approach within the common law system. Private
international law continues to grow in practical importance in Australia; this is demonstrated
most clearly in the increase in the number of cases coming before the courts in all of the
areas which are covered in this book. With notable exceptions, Australian legislators have
given limited attention to this field. Much of the focus in terms of legal development remains
on jurisdiction, while the recognition and enforcement of foreign judgments has become
increasingly significant. While the number of cases in the family jurisdiction has grown
substantially, there have been only a small number of changes in the principles applied in
that context. The amendments to the Marriage Act in 2017 to allow same-sex marriage to be
celebrated in Australia, and to remove the prohibition on recognition of foreign-celebrated
same-sex marriages, are particularly noteworthy, but the recognition of same sex marriages
already celebrated overseas may not have been given the careful attention it needed.
In relation to jurisdiction, the most important change that has occurred is the recent
adoption in four states and the Australian Capital Territory of the so-called harmonised
rules on service of process outside Australia,1 developed under the auspices of the Council of
Chief Justices. In most common law systems, service of process establishes the competence
of the courts to deal with international disputes. While, in principle, harmonisation between
the rules of court in the states and territories, and for that matter the Federal Court, is
desirable, there are serious shortcomings in the harmonised rules. Most problematically, in
the form of the rules adopted in New South Wales, South Australia, Tasmania and Victoria,
the requisite connections to various aspects of the claims are to ‘Australia’ rather than
to the relevant state.2 Not only do we believe that insufficient attention has been paid to the
legal basis of the harmonised rules, in allowing a state court to exercise jurisdiction over
overseas defendants in cases that have no connection with the relevant state, it seems that
the harmonised rules create some of the world’s most exorbitant international jurisdictions.
Still on the topic of jurisdiction, in 2016, the Federal Parliament’s Joint Standing
Committee on Treaties (JSCOT) recommended that Australia take binding treaty action to
bring the Hague Convention on Choice of Court Agreements 2005 into effect in Australia,
in the form of an International Civil Law Act. At the date of writing, in November 2018,
this had still not come to fruition; when (and if) it does, this will give stronger protection
to exclusive jurisdiction clauses in commercial contracts, equivalent to that given to
arbitration clauses. JSCOT also recommended that the International Civil Law Act should
implement the Hague Principles on Choice of Law in International Commercial Contracts;
this recommendation is not currently being pursued by the federal government.
In the area of recognition and enforcement of foreign judgments, the High Court has
been active since the last edition with two decisions that confirm the generally liberal

1. See Chapter 2.
2. The version of the harmonised rules adopted in the Australian Capital Territory refers to connections to the
Territory rather than to Australia: Court Procedures Rules 2006 (ACT) r 6502.

xvii
 Private International Law in Australia
approach towards enforcement in Australian law. In PT Bayan Resources TBK v BCBC
Singapore Pte Ltd 3 the court held that a mareva order may be issued by an Australian court
in aid of enforcement of a foreign judgment, while in Firebird Global Master Fund II Ltd
v Republic of Nauru,4 a foreign state judgment debtor was declared not to be immune from
the jurisdiction of an Australian court in a proceeding to enforce the judgment where the
transaction upon which the judgment was based was commercial.
This edition remains the same in structure as the previous editions, although a new
chapter on Equitable Claims and Trusts has been added to the section on Choice of Law for
Obligations.
Looking to the future, the consequences for private international law of the United
Kingdom’s exit from the European Union (‘Brexit’) remain unclear, but are potentially
significant for Australia. During the UK’s membership of the European Union, there has
been an increasing divergence between Australian private international law, and the laws
applicable in the UK, many of which derive from EU legal instruments. It is possible that
Brexit will have the indirect effect of reviving UK legal developments as an important source
for Australian private international law. The law is stated as of 30 June 2018.
We thank Jocelyn Holmes, Geraldine MacLurcan and Catherine Britton for their
editorial and production work on this edition.

Reid Mortensen Richard Garnett Mary Keyes

Toowoomba, Queensland Melbourne, Victoria Brisbane, Queensland

November 2018

3. (2015) 258 CLR 1.

4. (2015) 258 CLR 31.

xviii
 Table of Cases
References are to paragraphs

A — v National Bank of Greece and Athens

A (a minor), Re [1988] 1 FLR 365 …. 15.33, [1961] AC 255 …. 7.19, 8.64
15.53 Adamson’s Executors v McTaggart (1893) 20
A (Minor) (Abduction) (No 2), Re [1993] R 738 …. 23.13
1 All ER 272 …. 15.56 Adcock v Aarons (1903) 5 WALR 140
A (Minors) (Abduction: Acquiescence), …. 2.50
Re [1992] Fam 106 …. 15.47, 15.56 Addison v Addison [1955] NI 1 …. 13.39
A v B [1979] 1 NSWLR 57 …. 15.18 — v Brown [1954] 1 WLR 779 …. 8.58
— v S (Financial Relief after Overseas Administration of Norfolk Island v SMEC
US Divorce) [2002] EWHC 1157 …. 16.14 Australia Pty Ltd [2004] NFSC 1 …. 6.2
AAP Industries Pty Ltd v Rehau Pte Ltd Adsteam Building Industries Pty Ltd v The
[2015] NSWSC 468 …. 4.15 Queensland Cement and Lime Co Ltd
Abate, as Liquidator of Onix Capital SA, (No 4) [1985] 1 Qd R 127 …. 9.10
Re [2017] FCA 751 …. 24.11 AED Oil Ltd v Puffin FPSO Ltd (2010) 27 VR
Abigroup Contractors Pty Ltd v Transfield 22; [2010] VSCA 37 …. 6.5
Pty Ltd (1998) 217 ALR 435; [1998] VSC — v — (No 2) [2009] VSC 534 …. 6.5, 6.9
103 …. 6.12 Aerospatiale Holdings Australia Pty Ltd
Abouloff v Oppenheimer (1882) 10 QBD 295 v Elspan International Ltd (1992) 28
…. 5.28 NSWLR 321 …. 6.24
Abrook v Paterson (1995) 58 FCR 293 Agar v Hyde (2000) 201 CLR 552; [2000]
…. 4.59 HCA 41 …. 2.43, 2.44, 2.45
ACD Tridon Inc v Tridon Australia Pty Ltd Agarwal v Bagga [2016] NSWCS 1402
[2002] NSWSC 896 …. 6.2, 6.5, 6.14 …. 16.12
Ace Insurance Ltd v Moose Enterprise Pty Agnew v Usher (1884) 14 QBD 78 …. 2.83
Ltd [2009] NSWSC 175 …. 4.31 Agrokar DD, Re [2017] EWHC 2791 (Ch)
— v — [2009] NSWSC 724 …. 4.15, 4.16, …. 24.12
4.28, 4.87 Ah Yin v Christie (1907) 4 CLR 1428
Achillopoulos, Re [1928] Ch 433 …. 22.10 …. 10.29
ACN 006 397 413 Pty Ltd v International Ahmed v Habib Bank [2001] EWCA
Movie Group (Canada) Inc [1997] 2 VR 31 Civ 1270 …. 5.26
…. 6.33 AIG UK Ltd v QBE Insurance (Europe) Ltd
Acquaah-Akuffo & Abioye [2016] FamCAFC [2008] QSC 308 …. 17.24
194 …. 15.27 Ainslie v Ainslie (1927) 39 CLR 381
Activate No 1 Pty Ltd v Equuscorp Pty Ltd …. 14.50
[1999] FCA 619 …. 4.69 Airbus Industrie GIE v Patel [1999] 1 AC 119
Adams, Re [1967] IR 424 …. 22.42 …. 4.89
Adams v Adams [1971] P 188 …. 1.4, 8.37, Aircraft Support Industries Pty Ltd v William
8.38 Hare UAE LLC [2015] NSWCA 229
— v Cape Industries plc [1990] Ch 433 …. 6.32, 6.33
…. 5.13, 5.15, 5.32 AJ Smeman Car Sales v Richardson Pre-Run
— v Clutterbuck (1883) 10 QBD 403 …. 21.4 Cars (1969) 63 QJPR 150 …. 21.14

xix
 Private International Law in Australia
AK Investment CJSC v Kyrgyz Mobile Tel Ltd Alvear v Chetwynd Park Pty Ltd [2014] VSC
[2012] 1 WLR 1804 …. 5.33 214 …. 7.24, 7.31
Akai Pty Ltd v People’s Insurance Co Ltd ALYK (HK) Ltd v Caprock Commodities
(1996) 188 CLR 418 …. 4.10, 4.15, 4.17, Trading Pty Ltd and China Construction
4.19, 4.20, 4.28, 4.29, 4.20, 6.19, 9.9, 12.4, Bank Corp [2015] NSWSC 1006 …. 6.38
12.8, 12.23, 17.6, 17.7, 17.11, 17.12, 17.14, AM McKenzie, dec’d, Re (1951) 51 SR (NSW)
17.15, 17.16, 17.48, 17.53 293 …. 1.18, 10.10
— v — [1998] 1 Lloyd’s Rep 90 …. 4.20, 4.28 Amaca Pty Ltd v Frost (2006) 67 NSWLR
Akbarali v Brent London Borough Council 635; [2006] NSWCA 173 …. 2.68, 7.40
[1983] 2 AC 309 …. 10.59, 10.60 Amchem Products Inc v British Columbia
Akers v Deputy Commissioner of Taxation (Workers’ Compensation Board) [1993]
(2014) 311 ALR 167; [2014] FCAFC 57 1 SCR 897 …. 4.38, 4.86, 4.89
…. 24.1, 24.3, 24.4, 24.6, 24.15, 24.16 — v Workers’ Compensation Board (1989)
— v Saad Investments Co Ltd (in official 42 BCLR (2d) 77 …. 4.89
liquidation) (2010) 190 FCR 285; [2010] Americhip Inc v Dean [2015] 3 NZLR 498
FCA 1221 …. 24.8 …. 5.41
— v — [2013] FCA 738 …. 24.15 Amin Rasheed Shipping Corp v Kuwait
— v Samba Financial Group [2017] AC 424 Insurance Co [1984] AC 50 …. 17.1, 17.5,
…. 19.21, 19.25 17.14, 17.15, 17.17
Aksionairnoye Obschestvo AM Luther Amor v Macpak Pty Ltd (1989) 95 FLR 10
v James Sagor & Co [1921] 1 KB 456 …. 4.73
…. 8.37 An Infant, Re [1981] Qd R 225 …. 10.56
— v — [1921] 3 KB 532 …. 8.51 Anderson and McIntosh [2013] FamCAFC
Al-Attiya v Bin-Jassim Bin-Jaber Al Thani 200 …. 14.21
[2016] EWHC 212 …. 3.26 Anderton v Enterprising Global Group Pty
Aldrich v Attorney-General [1968] P 281 Ltd [2003] WASC 67 …. 4.69
…. 22.5 Andressen v Bendigo and Adelaide Bank Ltd
Alexander v Alexander (1969) 113 Sol Jnl 344 [2016] SASC 111 …. 2.8
…. 14.32 — v — (No 2) [2017] SASC 25 …. 2.8
Alfarsi & Elhage [2016] FamCA 428 …. 15.8 Anglo-Czechoslovak Credit Bank v Janssen
Ali v Ali [1968] P 564 …. 13.15, 13.16 [1943] VLR 185 …. 8.38
Allen v Depuy International Ltd [2015] Anglo-Iranian Oil Co Ltd v Jaffrate
EWHC 926 …. 7.40 (The Rose Mary) [1953] 1 WLR 246
Allen & Cortez [2016] FamCA 320 …. 16.4, …. 1.4, 8.65, 8.66
16.7, 16.8 Annesley, Re; Davidson v Annesley [1926]
Allergan Pharmaceuticals Inc v Bausch & Ch 692 …. 8.28, 8.29, 8.30, 8.32, 8.33, 9.2
Lomb Inc [1985] ATPR 40-636 …. 6.9 Anning v Anning (1907) 4 CLR 1049
Allstate Insurance Co v Hague 449 US 302 …. 21.4
(1981) …. 1.31 Anziani, Re; Herbert v Christopherson [1930]
Alseran v Ministry of Defence [2017] EWHC 1 Ch 407 …. 21.26
3289 …. 7.41 Application for Adoption of M, Re (1992) 112
Alstom Ltd v Sirakis (No 2) [2012] NSWSC ACTR 39 …. 10.56
64 …. 9.23 Application of Perpetual Trustee Company
Aluminal Industries Inc v Newtown Ltd: Re Estate of Dempsey [2016] NSWSC
Commercial Associates 89 FRD 326 (1980) 159 …. 10.8, 10.9, 10.16, 10.23, 10.25,
…. 2.9 10.27
Aluminium Industrie Vaassen BC Apt v Apt [1947] P 127 …. 7.18
v Romalpa Aluminium Ltd [1976] 1WLR — v — [1948] P 83 …. 7.18
676 …. 9.2 — v — [1948] P 204 …. 13.23

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 Table of Cases 
Armacel Pty Ltd v Smurfit Stone Container Attorney-General (UK) v Heinemann
Corp (2008) 248 ALR 573; [2008] FCA 592 Publishers Australia Pty Ltd
…. 4.16, 5.41 (the Spycatcher case) (1987) 10 NSWLR 86
Armar Shipping Co v Caisse Algerienne …. 1.6, 8.53, 8.54, 8.61, 8.62
d’Assurance et de Reassurance, — v — (1988) 165 CLR 30 …. 8.53, 8.54, 8.58,
(The Armar) [1981] 1 All ER 498 …. 17.21, 8.61, 8.62, 19.6, 19.7
17.22 August, The [1891] P 328 …. 17.34
Armitage v Attorney-General [1906] P 135 Augustus v Permanent Trustee Co
…. 14.41 (Canberra) Ltd (1971) 124 CLR 245
Arthur v Secretary, Dept of Family & …. 12.27, 17.13, 19.28, 23.22
Community Services [2017] FamCAFC Austin & Hong [2015] FamCA 1119
111 …. 15.44 …. 13.52
AS Latvijas Krajbanka v Antonov [2016] Australasian Temperance and General
EWHC 1679 …. 23.22 Mutual Life Assurance Society v Howe
Askew, Re [1930] 2 Ch 259 …. 8.20 (1922) 31 CLR 290 …. 2.19
AssetInsure Pty Ltd v New Cap Reinsurance Australian Broadcasting Corp v Waterhouse
Corp Ltd (in liq) (2004) 61 NSWLR 451; (1991) 25 NSWLR 519 …. 2.69, 12.31,
[2004] NSWCA 225 …. 20.10 12.32, 18.20
— v — (2006) 225 CLR 331; [2006] HCA 13 Australian Commercial Research and
…. 20.10 Development Ltd v ANZ McCaughan
Astro Exito Navegacion SA v Southland Merchant Bank [1989] 3 All ER 65 …. 4.54
Enterprise Co Ltd (No 2) (The Messiniaki Australian Competition and Consumer
Tolmi) [1982] QB 1248 …. 2.16 Commission v Chen (2003) 132 FCR 309;
Astro Venturoso Compania Naviera [2003] FCA 897 …. 17.50, 19.16
v Hellenic Shipyards SA (The Marianna) — v Valve Corp (No 3) (2016) 337 ALR 647;
[1983] 1 Lloyd’s Rep 12 …. 17.23 [2016] FCA 196 …. 2.52, 17.17, 17.19,
Atlantic Underwriting Agencies Ltd 17.50, 17.51
v Compagnia di Assicurazione di Milano Australian Federation of Islamic Councils
SpA [1979] 2 Lloyd’s Rep 240 Inc v Westpac Banking Corp (1988) 17
…. 17.18 NSWLR 623 …. 3.21, 3.28
Attorney-General v Bouwens (1838) 4 M & Australian Gourmet Pastes Pty Ltd v IAG
W 171; 150 ER 1390 …. 20.7, 20.10, 20.13 New Zealand Ltd [2017] VSCA 155 …. 4.9,
— v Higgins (1857) 2 H & N 339; 157 ER 339 4.56
…. 20.16 Australian Insurance Brokers Ltd v Hudig
— v Kevin (2003) 30 Fam LR 1; [2003] Langeveldt Pty Ltd (No 2) (1991) 7 WAR
FamCA 94 …. 13.11, 13.12 343 …. 2.41
— v Lord Sudeley [1896] 1 QB 354 Australian International Islamic College Board
…. 20.19 Inc v Kingdom of Saudi Arabia (2013) 298
Attorney-General for England and Wales v R ALR 655; [2013] QCA 129 …. 3.21
[2002] 2 NZLR 91 …. 9.2, 9.9, 17.33 Australian Mutual Provident Society v GEC
Attorney-General for the United Kingdom Diesels Australia Ltd [1989] VR 407 …. 2.78
v Wellington Newspapers Ltd [1988] — v Gregory (1908) 5 CLR 615 …. 20.33, 21.34
1 NZLR 129 …. 8.53 Australian Public Trustees Ltd (in its capacity
Attorney-General of Botswana v Aussie as trustee and/or responsible entity of
Diamond Products Pty Ltd (No 3) [2010] the Government Property Trust No 5)
WASC 141 …. 17.15, 17.16 v Australian Public Trustees Ltd (in its
Attorney-General of New Zealand v Ortiz capacity as trustee of the Government
[1982] QB 349 …. 1.6 Property Trust No 3) (2012) 81 ACSR 236;
— v — [1984] AC 1 …. 8.51, 8.52, 8.53, 8.54 [2012] VSC 364 …. 20.16

xxi
 Private International Law in Australia
Australian Securities and Investments Bank of Credit and Commerce International
Commission v Cycclone Magnetic Engines SA (No 10), Re [1997] Ch 213 …. 24.31
Inc (2009) 71 ACSR 1; [2009] QSC 058 Bank of Tokyo v Karoon [1987] AC 45 …. 4.87
…. 23.20 Bank Polska Kasa Opieki Spolka Akcyjna
— v Edwards (2004) 22 ACLC 1469; [2004] v Zbigniew Opara (2010) 238 FLR 309;
QSC 344 …. 24.28 [2010] QSC 093 …. 5.46, 5.55, 5.66, 5.67
Ayres v Evans (1981) 39 ALR 129; 56 FLR 235 Bank voor Handel en Scheepvaart NV
…. 8.45, 24.23 v Slatford [1953] 1 QB 248 …. 8.49
AZ (a Minor) (Abduction: Acquiescence), Bankers Trust International Ltd v Todd
Re [1993] 1 FLR 682 …. 15.47 Shipyard Corporation (The Halcyon Isle)
Azoff-Don Commercial Bank, Re [1954] [1981] AC 221 …. 7.50
Ch 315 …. 24.30 Bankinvest AG v Seabrook (1988) 14 NSWLR
711 …. 4.59, 4.61, 4.62, 4.64, 4.65, 4.67,
B 4.68, 4.69, 4.71, 4.73, 23.8
B (A Minor) (Abduction), Re [1994] 2 FLR Bannon v Nauru Phosphate Royalties Trust
249 …. 15.40 (No 1) [2016] VSC 425 …. 3.19
B (Minors) (Abduction) (No 2), Re (1993) Bant and Clayton [2015] FamCAFC 222
1 FLR 993 …. 15.31, 15.39 …. 9.23, 9.24
B v B (Minors: Enforcement of Access Barcelo v Electrolytic Zinc Co of Australasia
Abroad) [1988] 1 All ER 652 …. 15.57, Ltd (1932) 48 CLR 391 …. 12.11, 12.12, 12.24
15.59 Barclays Bank Ltd v Piacun [1984] 2 Qd R
Baba & Jarvinen (1980) FLC 90-882 476 …. 5.22, 5.46, 5.65
…. 16.8 Barker, Re [1995] 2 VR 439 …. 22.31, 22.42,
Babcock v Jackson 191 NE 2d 279 (1963) 22.45
…. 18.3 Baroda, Maharanee v Wildenstein [1972] 2
Bailey, Re [1985] 2 NZLR 656 …. 22.24, 22.34 QB 283 …. 2.9
Bain v Whitehaven Railway Co (1850) 3 HLC Barraclough, Marriage of (1987) 11 Fam LR
1 …. 7.31 773 …. 15.46
Baindail v Baindail [1946] P 122 …. 13.19, Barrie’s Estate, Re 35 NW 2d 658 (1949)
13.20 …. 22.32
Bak & Bak (1980) FLC 90-877 …. 16.8 Barriga, In the Marriage of (No 2) (1981)
Baker v Bolton (1808) 1 Camp 493; 170 ER 7 Fam LR 909 …. 13.4, 13.32, 14.32, 14.37,
1033 …. 18.34 14.38
Bakri Navigation Co Ltd v ‘Golden Glory’ Barrios and Sanchez, Marriage of (1989) 13
Glorious Shipping SA (1991) 217 ALR 152 Fam LR 477 …. 15.71
…. 6.14 Barros Mattos Junior v Macdaniels Ltd [2005]
Baldry v Jackson [1976] 1 NSWLR 19 EWHC 1323 …. 18.7
…. 2.10 Baschet v London Illustrated Standard Co
— v — [1977] 1 NSWLR 494 …. 18.40 [1900] 1 Ch 73 …. 7.38
Ballard v Attorney-General (Vic) (2010) 30 Base Metal Trading Ltd v Shamurin [2005]
VR 413; [2010] VSC 525 …. 19.4, 19.28 1 WLR 1157 …. 18.43, 23.22
Bamgbose v Daniel [1955] AC 107 Basra and Ahmed [2016] FamCA 838
…. 13.19 …. 14.21, 14.45, 14.48
Banco de Bilbao v Sancha and Rey [1938] Bassi, Marriage of (1994) 17 Fam LR 571
2 KB 176 …. 23.22 …. 15.54
Banco de Vizcaya v Don Alfonso de Borbon y Bata v Bata [1948] WN 366 …. 2.69
Austria [1935] 1 KB 140 …. 8.41, 8.51 Bateman v Fairfax Media Publications Pty
Bank of Africa v Cohen [1909] 2 Ch 129 Ltd [2013] ACTSC 72 …. 18.20
…. 21.6 — v Service (1881) 6 App Cas 386 …. 23.19

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 Table of Cases 
Bateman and Idameneo (No 123) Pty Ltd Berry v Shead (1886) 7 NSWLR 39 …. 10.56
v Fairfax Media Publications Pty Ltd Berthiaume v Dastous [1930] AC 79 …. 13.24
[2013] ACTSC 72 …. 9.29 Bethell, Re; Bethell v Hildyard (1888) 38
Bater v Bater [1906] P 209 …. 14.50 Ch D 220 …. 13.16
Bath v British and Malayan Trustees Ltd Betts and Hampson [2017] FamCA 107
[1969] 2 NSWR 114; (1969) 90 WN (Pt 1) …. 14.24, 14.45
(NSW) 44 …. 8.46, 22.12 BHP Billiton Ltd v Schultz (2004) 221 CLR
Baxter v RMC Group plc [2003] 1 NZLR 304 400; [2004] HCA 61 …. 2.31, 4.59, 4.61,
…. 2.77 4.62, 4.69, 4.70, 4.71, 4.72, 4.73, 4.76, 4.79,
BCBC Singapore Pte Ltd v PT Bayan 7.29, 7.42, 7.44, 7.52
Resources TBK [2012] WASC 170 …. 2.93, BHP Petroleum Pty Ltd v Oil Basins Ltd
2.94 [1985] VR 725 …. 2.83
Beals v Saldanha [2003] 3 SCR 416 …. 5.21 — v — [1985] VR 756 …. 17.11
Beamish v Beamish (1861) 9 HL Cas 274; 11 BHPB Freight Pty Ltd v Cosco Oceania
ER 735 …. 13.26 Chartering Pty Ltd (2008) 168 FCR 169;
Beaumont, Re [1893] 3 Ch 490 …. 10.18 [2008] FCA 551 …. 6.9, 6.14, 6.20
Beaver v Master in Equity of the Supreme Black-Clawson International Ltd
Court of Victoria [1895] AC 251 …. 20.17 v Papierwerke Waldhof-Aschaffenburg AG
Bedake, In the Estate of [2015] ACTSC 267 [1981] 2 Lloyd’s Rep 446 …. 2.41
…. 10.6, 10.7, 10.22 Blad v Bamfield (1673) 3 Swans 603; 36 ER
Belhaj v Straw [2017] AC 964 …. 8.51, 8.69 992 …. 1.22
Bell v Kennedy (1868) LR 1 Sc & Div 307 Blair and Jenkins, Marriage of (1988) 12 Fam
…. 10.24, 10.27 LR 85 …. 15.73
Bell Group NV (in liq) v Insurance Bligh & James [2018] FamCA 187 …. 16.10
Commission of Western Australia [2017] Blohn v Desser [1962] 2 QB 116 …. 5.15, 5.25
WASCA 229 …. 4.92 Blonde and Other Ships, The [1921] P 155
Bellinger v Bellinger (2002) 1 All ER 311 …. 20.27
…. 13.11 Blue Sky One Ltd v Mahan Air [2010] EWHC
— v — [2003] 2 AC 467; [2003] 2 WLR 1174 631 …. 8.20, 21.17
…. 13.6, 13.12 Blunden v Commonwealth (2003) 218 CLR
Belyando Shire Council v Rivers [1908] 330; [2003] HCA 73 …. 11.17, 18.16
QWN 17 …. 2.50 Blyth, Re [1997] 2 Qd R 567 …. 22.42, 22.49
Bempde v Johnstone (1796) 3 Ves Jun 198; Bodley Head Ltd v Flegon [1972] 1 WLR 680
30 ER 967 …. 10.7, 10.17 …. 17.29
Benaim & Co v Debano [1924] AC 514 Bogart Lingerie Ltd v Steadmark Pty Ltd
…. 17.42 [2013] VSC 212 …. 4.54
Benefit Strategies Group Inc v Prider (2005) Boissevain v Weil [1950] AC 327 …. 17.38
91 SASR 544; [2005] SASC 194 …. 5.29, Bonacina, Re [1912] 2 Ch 394 …. 17.32
8.42, 8.43 Bonython v Commonwealth [1951] AC 201
Benko, dec’d, Re [1968] SASR 243 …. 10.8, …. 17.15, 17.37
10.9 Booth v Phillips [2004] EWHC 1437
Benson v Rational Entertainment Enterprises …. 18.16
Ltd [2015] NSWSC 906 …. 2.50, 2.58, 4.14, Borg Warner (Aust) Ltd v Zupan [1982] VR
4.25 437 …. 7.17, 12.29
Berchtold, Re [1923] 1 Ch 192 …. 20.18, Bourke v State Bank of New South
20.33 Wales (1988) 85 ALR 61 …. 4.61
Berezovsky v Abramovich [2010] EWHC 647 Bowling v Cox [1926] AC 751 …. 2.50
…. 19.20, 19.21 Boyle v Sacker (1888) 39 Ch D 249 …. 2.16
— v Michaels [2000] 2 All ER 986 …. 2.74 Boys v Chaplin [1971] AC 356 …. 7.39, 18.3

xxiii
 Private International Law in Australia
BP Australia Ltd v Wales [1982] Qd R 386 Brunel v Brunel (1871) LR 12 Eq 298
…. 2.58 …. 10.27
BP plc v National Union Fire Insurance Co Buchanan v Rucker (1808) 9 East 192; 103 ER
[2004] EWHC 1132 …. 17.24 546 …. 5.32
Brabo, The [1949] AC 326 …. 2.41 Buckle v Buckle [1956] P 181 …. 13.40
Bradley v Commonwealth (1973) 128 CLR Buckley v Gibbett [1996] 836 FCA 1
557 …. 1.5 …. 4.69
Brailey v Rhodesia Consolidated Ltd [1910] Bulong Nickel Pty Ltd, Re (2002) 42 ACSR
2 Ch 95 …. 9.10 52; [2002] WASC 126 …. 17.11
Brassard v Smith [1925] AC 371 …. 20.16 Bumper Development Corp Ltd
Bray v F Hoffman-La Roche Ltd (2002) 118 v Commissioner of Police of the
FCR 1 …. 17.50 Metropolis [1991] 4 All ER 638; [1991] 1
— v — (2003) 130 FCR 317; [2003] FCAFC WLR 1362 …. 7.36, 23.17
153 …. 2.40 Bunyon v Lewis (No 3) [2013] FamCA 888
Brear v James Hardie & Coy Pty Ltd (2000) …. 10.55, 15.8, 15.12, 15.14, 15.24
50 NSWLR 388; [2000] NSWCA 352 Burgess (dec’d), Estate of, Re (2011) 111
…. 7.48 SASR 401; [2011] SASC 223 …. 22.4
Breavington v Godleman (1988) 169 CLR Burnham v Superior Court of California 495
41 …. 1.6, 1.25, 1.29, 7.39, 11.5, 11.8, 11.9, US 604 (1990) …. 2.9
11.10, 11.11, 11.14, 11.16 Burt v Yiannakis [2015] NZHC 1174 …. 3.9,
Breen & Breen [2014] FamCA 1030 …. 15.16 19.15, 19.27
Bremer v Freeman (1857) 10 Moo PC 306; Bushfield Aircraft Co v Great Western
14 ER 508 …. 22.36 Aviation Pty Ltd (1996) 16 SR (WA) 97
Bristol-Myers Squibb Co v Superior Court of …. 5.17
California, San Francisco County 582 US Busst v Lotsirb Nominees Pty Ltd [2003]
(2017) …. 2.9 1 Qd R 477; [2002] QCA 296 …. 17.15,
Bristow v Sequeville (1850) 5 Exch 275; 17.23, 17.44, 18.44
155 ER 118 …. 9.10 Butler, Re [1969] QWN 48 …. 5.71
British South Africa Co v Companhia de Buttigeig v Universal Terminal & Stevedoring
Moçambique [1893] AC 602 …. 2.35, 3.2, Corp [1972] VR 626 …. 2.68
3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 16.6, Buultjens v Robertson [2010] FCA 134
16.16 …. 11.11
— v De Beers Consolidated Mines Ltd [1910]
2 Ch 502 …. 3.9 C
Brodin v A/R Seljan 1973 SLT 198 …. 18.47 C v C (Minor Abduction: Rights of Custody
Brook v Brook (1861) 9 HL Cas 193; 11 ER Abroad) [1989] 2 All ER 465 …. 15.40,
703 …. 13.22, 13.32 15.53
Brooke v Director General, Dept of C and D (1979) 5 Fam LR 636 …. 13.11
Community Services (NSW) (2002) 29 C and P Trading Pty Ltd v Roladuct Spiral
Fam LR 121; [2002] FamCA 258 …. 15.40 Tubing Pty Ltd [1994] 2 Qd R 247 …. 2.26
Brown v Babbit Ford Inc 571 P 2d 689 (1977) Cain, In the Marriage of (1987) 11 Fam LR
…. 1.34 540; FLC 91-808 …. 14.26, 14.30, 16.14
— v Brown [1963] NSWR 1371 …. 14.45 Caithness, Earl of, Re (1891) 7 TLR 354
— v Gregson [1920] AC 860 …. 22.29 …. 22.33
— v New Zealand Basing Ltd [2018] 1 NZLR Caldwell v Caldwell [1946] SASR 185
245; [2017] NZSC 139 …. 12.9, 17.10 …. 10.56
Browne v Browne [1917] NZLR 425 …. 10.27 Callum & Favre [2016] FamCA 487 …. 15.15
Bruce v Bruce (1790) 6 Bro PC 566; 2 ER Cambridge Credit Corp Ltd v Lissenden
1271 …. 10.17, 22.35 (1987) 8 NSWLR 411 …. 20.10

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 Table of Cases 
Cammell v Sewell (1860) 5 H & N 728; 157 Chaff and Hay Acquisition Committee v JA
ER 1371 …. 18.42, 20.8, 21.10 Hemphill and Sons Pty Ltd (1947) 74 CLR
Canadian Pacific Railway Co v Parent [1917] 375 …. 1.6, 7.36, 11.1
AC 195 …. 7.13, 18.47 Challenor v Douglas [1983] 2 NSWLR 405
Canavan, Re (2017) 349 ALR 534; [2017] …. 2.78
HCA 45 …. 10.49, 10.52, 12.14 Chamberlain v Chamberlain 43 NY 424 at
Cannon v Cannon [2005] 1 Fam LR 169 434 (1870) …. 22.41
…. 15.42 Chan Wing (Vanuatu) Ltd v Motis Pacific
Cape & Cape (2013) 50 Fam LR 1; [2013] Lawyers [1998] VUCA 3 …. 4.47
FamCAFC 114 …. 15.1 Chandra and Alhoub [2015] FamCA 77
Cape Lambert Resources Ltd v MCC Australia …. 14.4, 14.26
Sanjin Mining Pty Ltd (2013) 298 ALR 666; Chang, Marriage of (1992) 15 Fam LR 629
[2013] WASCA 66 …. 4.22, 6.6, 6.8 …. 15.28
Carey v Australian Broadcasting Corp (2010) Chapman and Jansen, Re (1990) 13 Fam LR
77 NSWLR 136; [2010] NSWSC 709 853 …. 4.62, 4.69
…. 18.20 Chappell’s Estate, Re 213 P 684 (1923)
Cariaga v Eighth Judicial District Court 762 …. 22.41
P 2d 886 (1988) …. 2.9 Charron v Montreal Trust Co (1958) 15 DLR
Carl Zeiss Stiftung v Rayner & Keeler Ltd (2d) 240 …. 17.29
(No 2) [1967] 1 AC 853 …. 5.40, 23.22 Charter Pacific Corp Ltd v Commonwealth
Carron Iron Co v Maclaren (1855) 5 HLC Scientific & Industrial Research
416; 10 ER 961 …. 4.87 Organisation [1998] FCA 1362 …. 4.69
Casaceli v Natuzzi SpA (2012) 292 ALR 143; Chase Manhattan Bank NA v Israel-British
[2012] FCA 691 …. 6.5, 6.6 Bank (London) Ltd [1981] Ch 105
Casdagli v Casdagli [1918] P 89 …. 8.19 …. 19.17
Castel Electronics Pty Ltd v TCL Air Chatenay v Brazilian Submarine Telegraph
Conditioner (Zhongshan) Co Ltd (No 2) Co Ltd [1891] 1 QB 79 …. 17.17
[2012] FCA 1214 …. 6.38 Chen v Lu [2014] NSWSC 1053 …. 22.34
— v TCL Airconditioner (Zhongshan) Co Chen and Tan [2012] FamCA 225
Ltd [2013] VSC 92 …. 2.43 …. 16.6
Castree v ER Squibb & Sons Ltd [1980] 2 All Cheni v Cheni [1965] P 85 …. 13.15
ER 589 …. 2.68 Chenoweth v Summers (1941) 47 ALR (CN)
Castrique v Imrie (1870) LR 4 HL 414 364a …. 2.50
…. 5.18, 14.50 Chicago Bridge and Iron Constructors Pty
Caterpillar Financial Services Corp v SNC Ltd v Sarvanidis (1986) 44 SASR 418
Passion [2004] 2 Lloyd’s Rep 99 …. 17.40 …. 2.41
Catterall v Catterall (1847) 1 Rob Eccl 580; Chichester v Marquis and Marchioness
163 ER 1142 …. 13.26, 13.28 of Donegal (1822) 1 Add 5; 162 ER 2
Cell Tech Communications Pty Ltd v Nokia …. 10.20
Mobile Phones (UK) Ltd (1995) 58 FCR Child Support Registrar & Higgins [2016]
365 …. 2.41 FamCAFC 2 …. 16.9
Central Petroleum Ltd v Geoscience Chow Cho Poon (Private) Ltd, Re (2011) 80
Resource Recovery LLC [2017] QSC 223 NSWLR 507; [2011] NSWSC 300 …. 24.7,
…. 4.14, 4.54, 5.41 24.23
Centrebet Pty Ltd v Baasland (2012) 272 Chubb Insurance Co of Australia Ltd
FLR 69; [2012] NTSC 100 …. 2.52, 2.76, v Moore (2013) 302 ALR 101; [2013]
4.54 NSWCA 212 …. 12.13
Century Credit Corp v Richard (1962) 34 Citibank Ltd v Nobes (1993) 15 Qld Lawyer
DLR (2d) 291 …. 21.13, 21.14 Reps 9 …. 2.33

xxv
Exploring the Variety of Random
Documents with Different Content
me, did a victim's pale face never haunt you, a victim's agonized cry
never ring in your ears?"
For just an instant the prior winced, as one who feels a sharp
sudden pain, but determines to conceal it.
"There!" cried Juan--and at last he released his arm and flung it
from him--"I read an answer in your look. You, at least, are capable
of remorse."
"You are false there," the prior broke in. "Remorse is not for
me."
"No? Then all the worse for you--infinitely the worse. Yet it may
be. You may sleep and rise, and go to your rest again untroubled by
an accusing conscience. You may sit down to eat and drink with the
wail of your brother's anguish ringing in your ears, like Munebrãga,
who sits feasting yonder in his marble hall, with the ashes yet hot on
the Quemadero. Until you go down quick into hell, and the pit shuts
her mouth upon you. Then, THEN shall you drink of the wine of the
wrath of God, which is poured out without mixture into the cup of
his indignation; and you shall be tormented with fire and brimstone
in the presence of the holy angels, and in the presence of the
Lamb."
"Thou art beside thyself," cried the prior; "and I, scarce less
mad than thou, to listen to thy ravings. Yet hear me a moment, Don
Juan Alvarez. I have not merited these insane reproaches. To you
and yours I have been more a friend than you wot of."
"Noble friendship! I thank you for it, as it deserves."
"You have given me, this hour, more than cause enough to
order your instant arrest."
 "You are welcome. It were shame indeed if I could not bear at
your hands what my gentle brother bore."
The last of his race! The father dead in prison; the mother dead
long ago (Fray Ricardo himself best knew why); the brother burned
to ashes. "I think you have a wife, perhaps a child?" asked the prior
hurriedly.
"A young wife, and an infant son," said Juan, softening a little at
the thought.
"Wild as your words have been, I am yet willing, for their sakes,
to show you forbearance. According to the lenity which ministers of
the Holy Office--"
"Have learned from their father the devil," interrupted Juan, the
flame of his wrath blazing up again. "After what the stars looked
down on last night, dare to mock me with thy talk of lenity!"
"You are in love with destruction," said the prior. "But I have
heard you long enough. Now hear me. You have been, ere this,
under grave suspicion. Indeed, you would have been arrested, only
that your brother endured the Question without revealing anything
to your disadvantage. That saved you."
But here he stopped, struck with astonishment at the sudden
change his words had wrought.
A man stabbed to the heart makes no outcry, he does not even
moan or writhe. Nor did Juan. Mutely he sank on the nearest seat,
all his rage and defiance gone now. A moment before he stood over
the shrinking Inquisitor like a prophet of doom or an avenging angel;
now he cowered crushed and silent, stricken to the soul. There was
a long silence. Then he raised a changed, sad look to the prior's
face. "He bore that for me," he said, "and I never knew it."
 In the cold gray morning light, now filling the room, he looked
utterly forlorn and broken. The prior could even afford to pity him.
He questioned, mildly enough, "How was it you did not know it? Fray
Sebastian Gomez, who visited him in prison, was well aware of the
fact."
In Juan's present mood every faculty was stimulated to
unnatural activity. This perhaps enabled him to divine a truth which
in calmer moments might have escaped him. "My brother," he said,
in a low tone of deep emotion, "my heroic, tender-hearted brother
must have bidden him conceal it from me."
"It was strange," said the prior, and his thoughts ran back to
other things which were strange also--to the uniform patience and
gentleness of Carlos; to the fortitude with which, whilst
acknowledging his own faith, he had steadily refused to compromise
any one else; to the self-forgetfulness with which he had shielded
his father's last hours from disturbance. Granted that the heretic was
a wild beast, "made to be taken and destroyed," even the hunter
may admire unblamed the grace and beauty of the creature who has
just fallen beneath his relentless weapon. Something like a mist rose
to the eyes of Fray Ricardo, taking him by surprise.
Still, the interests of the Faith were paramount with him. All that
had been done had been well done; he would not, if he could, undo
any part of it. But did his duty to the Faith and to Holy Church
require that he should hunt the remaining brother to death, and thus
"quench the coal that was left"? He hoped not; he thought not. And,
although he would not have allowed it to himself, the words that
followed were really a peace-offering to the shade of Carlos.
 "Young man, I am willing, for my own part, to overlook the wild
words you have uttered, regarding them as the outpourings of
insanity, and making moreover due allowance for your natural
fraternal sorrow. Still you must be aware that you have laid yourself
open, and not for the first time, to grave suspicion of heresy. I
should not only sin against my own conscience, but also expose
myself to the penalties of a grievous irregularity, did I take no steps
for the vindication of the Faith and your just and well-merited
punishment. Therefore give ear to what I say. This day week I bring
the matter before the Table of the Holy Office, of which I have the
honour to be an unworthy member. And God grant you the grace of
repentance, and his forgiveness."
Having said this, Fray Ricardo left the room. He disappears also
from our pages, where he occupied a place as a type of the less
numerous and less guilty class of persecutors--those who not only
thought they were doing God service (Munebrãga may have thought
that, but he was only willing to do God such service as cost him
nothing), but who were honestly anxious to serve him to the best of
their ability. His future is hidden from our sight. We cannot even
undertake to say whether, when death drew near,--if the name of
Alvarez de Meñaya occurred to him at all,--he reproached himself for
his sternness to the brother whom he had consigned to the flames,
or for his weakness to the brother to whom he had generously given
a chance of life and liberty.
It is not usually the most guilty who hear the warning voice that
denounces their crimes and threatens their doom. Such words as
Don Juan spoke to Fray Ricardo could not, by any conceivable
possibility, have been uttered in the presence of Gonzales de
Munebrãga.
Soon afterwards a lay brother, the same who had admitted Don
Juan, entered the room and placed wine on the table before him.
"My lord the prior bade me say your Excellency seemed exhausted,
and should refresh yourself ere you depart," he explained.
Juan motioned it away. He could not trust himself to speak. But
did Fray Ricardo imagine he would either eat bread or drink water
beneath the roof that sheltered him?
Still the poor man lingered, standing before him with the air of
one who had something to say which he did not exactly know how
to bring out.
"You may tell your lord that I am going," said Juan, rising
wearily, and with a look that certainly told of exhaustion.
"If it please your noble Excellency--" and the lay brother
stopped and hesitated.
"Well?"
"Let his Excellency pardon me. Could his worship have the
misfortune to be related, very distantly no doubt, to one of the
heretics who--"
"Don Carlos Alvarez was my brother," said Juan proudly.
The poor lay brother drew nearer to him, and lowered his voice
to a mysterious whisper. "Señor and your Excellency, he was here in
prison for a long time. It was thought that my lord the prior had a
kindness for him, and wished him better used than they use the
criminals in the Santa Casa. It happened that the prisoner whose cell
he shared died the day before his--removal. So that the cell was
empty, and it fell to my lot to cleanse it. Whilst I was doing it I found
this; I think it belonged to him."
He drew from beneath his serge gown a little book, and handed
it to Juan, who seized it as a starving man might seize a piece of
bread. Hastily taking out his purse, he flung it in exchange to the lay
brother; and then, just as the matin bells began to ring, he buckled
on his sword and went forth.

XLVIII.
San Isodro Once More.

"And if with milder anguish now I bear

To think of thee in thy forsaken rest;
If from my heart be lifted the despair,
The sharp remorse with healing influence pressed.
It is that Thou the sacrifice hast blessed,
And filled my spirit, in its inmost cell,
With a deep chastened sense that all at last is well."-
-Hemans

The cloudless sky above him, the fresh morning air on his cheek, the
dew-drops on his feet, Don Juan walked along. The river--his own
bright Guadalquivir--glistened in the early sunshine; and soon his
pathway led him amidst the gray ruins of old Italica, while among
the brambles that half hid them, glittering lizards, startled by his
footsteps, ran in and out. But he saw nothing, felt nothing, save the
passionate pain that burned in his heart. During his interview with
Fray Ricardo he had been, practically and for the time, what the
prior called him, insane--mad with rage and hate. But now rage was
dying out for the present, and giving place to anguish.
Is the worst pang earth has to give that of witnessing the
sufferings of our beloved? Or is there yet one keener, more thrilling?
That they should suffer alone; no hand near to help, no voice to
speak sympathy, no eye to look "ancient kindness" on their pain.
That they should die--die in anguish--and still alone,--

"With eyes turned away,

And no last word to say."

Don Juan was now drinking that bitter cup to its very dregs. What
the young brother, his one earthly tie, had been to him, need not
here be told; and assuredly he could not have told it. He had been
all his life a thing to protect and shield--as the strong protect the
weak, as manhood shields womanhood and childhood. Had God but
taken him with his own right hand, Juan would have thought it a
light matter, a sorrow easily borne. But, instead, He stood afar off--
He did not help; whilst men, cruel as fiends from the bottomless pit,
did their worst, their very worst, upon him. And with refined self-
torture he went through all the horrible details, as far as he knew or
could guess them. Nor did he spare to stab his own heart with that
keenest weapon of all--"It was for me; for me he endured the
Question." The cry of his brother's anguish--anguish borne for him--
seemed to sound in his ears and to haunt him: he felt that it would
haunt him evermore.
Of course, there was a well of comfort near, which a child's
hand might have pointed out to him: "All is over now; he suffers no
longer--he is at rest." But who ever stoops to drink from that well in
the parching thirst of the first hour of such a grief as his? In truth,
all was over for Carlos; but all was not over for Juan. He had to pass
through his dark hour as really as Carlos had passed through his.
Again the agony almost maddened him; again wild hatred and
rage against his brother's torturers rose and surged like a flood
within him. And with these were mingled thoughts, too nearly
rebellious, of Him whom that brother trusted so firmly and served so
faithfully; as if he had used his servant hardly, and forsaken him in
his hour of sorest need.
He shrank with horror from every wayfarer he chanced to meet,
imagining that his eyes might have looked on his brother's suffering.
But at last he came unawares upon the gate of San Isodro. Left
unbarred by some accident, it yielded to his touch, and he entered
the monastery grounds. At that very spot, three years ago, the
brothers parted, on the day that Carlos avowed his change of faith.
Yet not even that remembrance could bring a tear to the hot and
angry eyes of Juan. But just then he happened to recollect the book
he had received from the lay brother. He took it from its place of
concealment, and eagerly began to examine it. It was almost filled
with writing; but not, alas! from that beloved hand. So he flung it
aside in bitter disappointment. Then becoming suddenly conscious of
bodily weakness, he half sat down, half threw himself on the
ground. His vigorous frame and his strong nerves saved him from
swooning outright: he only lay sick and faint, the blue sky looking
black above him, and a strange, indistinct sound, as of many voices,
murmuring in his ears.
By-and-by he became conscious that some one was holding
water to his lips, and trying, though with an awkward, trembling
hand, to loose his doublet at the throat. He drank, shook off his
weakness, and looked about him. A very old man, in a white tunic
and brown mantle, was bending over him compassionately. In
another moment he was on his feet; and having briefly thanked the
aged monk for his kindness, he turned his face to the gate.
"Nay, my son," the old man interposed; "San Isodro is changed-
-changed! Still the sick and weary never left its gates unaided; and
they shall not begin now--not now. I pray you come with me to the
house, and refresh and rest yourself there."
Juan was not reckless enough to refuse what in truth he sorely
needed. He entered the monastery under the guidance of poor old
Fray Bernardo, who had been passed by, perhaps in scorn, by the
persecutors: and so, after all, he had his wish--he should die and be
buried in peace where he had passed his life from boyhood to
extreme old age. Yet there was something sad in the thought that
the storm that swept by had left untouched the poor, useless, half-
withered tree, while it tore down the young and strong and noble
oaks, the pride of the now desolated forest.
The few cowed and terrified monks who had been allowed to
remain in the convent received Don Juan with great kindness. They
set food and wine before him: food he could not touch, but wine he
accepted with thankfulness. And they almost insisted on his
endeavouring to take some rest; assuring him that when his servant
and horses should arrive, they would see them properly cared for,
until such time as he might be able to resume his journey.
His journey would not brook delay, as he knew full well. That his
young wife might not be a widow and his babe an orphan, he
"charged his soul to hold his body strengthened" for the work that
both had to do. Back to Nuera for these dear ones as swiftly as the
fleetest horses would bear him, then to Seville again, and on board
the first ship he could meet with bound for any foreign port,--would
the term of grace assigned him by the Inquisitor suffice for all this?
Certainly not a moment should be lost.
"I will rest for an hour," he said. "But I pray you, my fathers, do
me one kindness first. Is there a man here who witnessed--what
was done yesterday?"
A young monk came forward. Juan led him into the cell which
had been prepared for him to rest in, and leaning against its little
window, with his face turned away, he murmured one agitated
question. Three words comprised the answer,--
"Calmly, silently, quickly."
Juan's breast heaved and his strong frame trembled. After a
long interval he said, still without looking,--
"Now tell me of the others. Name him no more."
"No less than eight ladies died the martyr's death," said the
monk, who cared not, before this auditor, to conceal his own
sentiments. "One of them was Señora Maria Gomez; your Excellency
probably knows her story. Her three daughters and her sister died
with her. When their sentences were read, they embraced on the
scaffold, and bade each other farewell with tears. Then they
comforted each other with holy words about our Lord and his
passion, and the home he was preparing for them above."
Here the young monk paused for a few moments; then went on,
his voice still trembling: "There were, moreover, two Englishmen and
a Frenchman, who all died bravely. Lastly, there was Juliano
Hernandez."
"Ah! tell me of him."
"He died as he had lived. In the morning, when brought out into
the court of the Triana, he cried aloud to his fellow-sufferers,--
'Courage, comrades! Now must we show ourselves valiant soldiers of
Jesus Christ. Let us bear faithful testimony to his truth before men,
and in a few hours we shall receive the testimony of his approbation
before angels, and triumph with him in heaven.' Though silenced, he
continued throughout the day to encourage his companions by his
gestures. On the Quemadero, he knelt down and kissed the stone
upon which the stake was erected; then thrust his head among the
fagots to show his willingness to suffer. But at the end, having raised
his hands in prayer, one of the attendant priests--Dr. Rodriguez--
mistook the attitude for a sign that he would recant, and made
intercession with the Alguazils to give him a last opportunity of
speaking. He confessed his faith in a few strong, brief words; and
knowing the character of Rodriguez, told him he thought the same
himself, but hid his true belief out of fear. The angry priest bade
them light the pile at once. It was done; but the guards, with kind
cruelty, thrust the martyr through with their lances, so that he
passed, without much pain, into the presence of the Lord whom he
served as few have been honoured to do."
"And--Fray Constantino?" Juan questioned.
 "He was not, for God took him. They had only his dust to burn.
They have sought to slander his memory, saying he raised his hand
against his own life. But we knew the contrary. It has reached our
ears--I dare not tell you how--that he died in the arms of one of our
dear brethren from this place--poor young Fray Fernando, who
closed his eyes in peace. It was from one of the dark underground
cells of the Triana that he passed straight to the glory of God."[#]

[#] At the Auto they produced his effigy, of the size of life, clad in his canon's
robe, and with the arms stretched out in the gesture he had been wont to use in
preaching; but it caused such a demonstration of feeling among the people, that
they were obliged hastily to withdraw it.
It was at this Auto that Maria Gonsalez was sentenced to receive two
hundred lashes, and to be imprisoned for ten years, for the kindnesses she had
shown the prisoners. An equally severe punishment was awarded to the under-
gaoler Herrera for the offence of having allowed a mother and three daughters,
who were imprisoned in separate cells, an interview of half an hour; while the
many cruelties and peculations of the infamous Benevidio were only chastised by
the loss of his situation and lit advantages, and banishment from Seville.

"I thank you for your tidings," said Juan, slowly and faintly. "And
now I pray of you to leave me."
After a considerable time, one of the monks softly opened the
door of their visitor's cell. He sat on the pallet prepared for him, his
head buried in his hands.
"Señor," said the monk, "your servant has arrived, and begs you
to excuse his delay. It may be there are some instructions you wish
him to receive."
 Juan roused himself with an effort.
"Yes," he said; "and I thank you. Will you add to your kindness
by bidding him immediately procure for us fresh horses, the best and
fleetest that can be had?" He sought his purse; but, remembering in
a moment what had become of it, drew a ring from his finger to
supply its loss. It was the diamond ring that the Sieur de Ramenais
had given him. A keen pang shot through his heart. "No, not that; I
cannot part with it." He took two others instead--old family jewels.
"Bid him bring these," he said, "to Isaac Ozorio, who dwells in La
Juderia[#]--any man there will show him the house; take for them
whatever he will give him, and therewith hire fresh horses--the best
he can--from the posada where he rested, leaving our own in
pledge. Let him also buy provisions for the way; for my business
requires haste. I will explain all to you anon."

[#] The Jewish Quarter of Seville.

While the monk did the errand, Don Juan sat still, gazing at the
diamond ring. Slowly there came back upon his memory the words
spoken by Carlos on the day when the sharp facets cut his hand,
unfelt by him: "If He calls me to suffer for him, he may give me such
blessed assurance of his love, that in the joy of it pain and fear will
vanish."
Could it be possible He had done this? Oh, for some token, to
relieve his breaking heart by the assurance that thus it had been!
And yet, wherefore seek a sign? Was not the heroic courage, the
calm patience, given to that young brother, once so frail and timid,
as plain a token of the sunlight of God's peace and presence as is
the bow in the cloud of the sun shining in the heavens? True; but
not the less was his soul filled with passionate longing for one word-
-only one word--from the lips that were dust and ashes now. "If God
would give me that," he moaned, "I think I could weep for him."
It occurred to him then that he might examine the book more
carefully than he had done before. Don Juan, of late, had been no
great reader, except of the Spanish Testament. Instead of glancing
rapidly through the volume with a practised eye, he carefully began
at the beginning and perused several pages with diligence, and with
a kind of compelled and painful attention.
The writer of the diary with which the book seemed filled had
not prefixed his name. Consequently Juan, who was without a clue
to the authorship, saw in it merely the effusions of a penitent, with
whose feelings he had but little sympathy. Still, he reflected that if
the writer had been his brother's fellow prisoner, some mention of
his brother would probably reward his persevering search. So he
read on; but he was not greatly interested, until at length he came
to one passage which ran thus:--
"Christ and Our Lady forgive me, if it be a sin. Ofttimes, even by
prayer and fasting, I cannot prevent my thoughts from wandering to
the past. Not to the life I lived, and the part I acted in the great
world, for that is dead to me and I to it; but to the dear faces my
eyes shall never see again. My Costanza!"--("Costanza!" thought
Juan with a start, "that was my mother's name!")--"my wife! my
babe! O God, in thy great mercy, still this hungering and thirsting of
the heart!"
Immediately beneath this entry was another. "May 21. My
Costanza, my beloved wife, is in heaven. It is more than a year ago,
but they did not tell me till to-day. Does death only visit the free?"
Yet another entry caught the eye of Juan. "Burning heat to-day.
It would be cool enough in the halls of Nuera, on the breezy slope of
the Sierra Morena. What does my orphaned Juan Rodrigo there, I
wonder?"
"Nuera! Sierra Morena! Juan Rodrigo!" reiterated the astonished
reader. What did it all mean? He was stunned and bewildered, so
that he had scarcely power left even to form a conjecture. At last it
occurred to him to turn to the other end of the book, if perchance
some name, affording a clue to the mystery, might be inscribed
there.
And then he read, in another, well-known hand, a few calm
words, breathing peace and joy, "quietness and assurance for ever."
He pressed the loved handwriting to his lips, to his heart. He
sobbed over it and wept; blistering it with such burning tears as
scarcely come from a strong man's eyes more than once in a
lifetime. Then, flinging himself on his knees, he thanked God--God
whom he had doubted, murmured against, almost blasphemed, and
who yet had been true to his promise--true to his tried and suffering
servant in the hour of need.
When he rose, he took up the book again, and read and reread
those precious words. All but the first he thought he could
comprehend. "My beloved father is gone to Him in peace." Would
the preceding entries throw any light upon that saying!
Once more, with changed feelings and quickened perceptions,
he turned back to the records of the penitent's long captivity. Slowly
and gradually the secret they revealed unfolded itself before him.
The history of the last nine months of his brother's life lay clearly
traced; and the light it shed illumined another life also, longer,
sadder, less glorious than his.
One entry, almost the last, and traced with a trembling hand, he
read over and over, till his eyes grew too dim to see the words.
"He entreats of me to pray for my absent Juan, and to bless
him. My son, my first-born, whose face I know not, but whom he
has taught me to love, I do bless thee. All blessings rest upon thee--
blessings of heaven above, blessings of the earth beneath, blessings
of the deep that lieth under! But for thee, Carlos, what shall I say? I
have no blessing fit for thee--no word of love deep and strong
enough to join with that name of thine. Doth not He say, of whose
tenderness thou tellest me ours is but the shadow, 'He will be silent
in his love'? But may he read my heart in its silence, and bless thee,
and repay thee when thou comest to thy home, where already thy
heart is."
It might have been two hours afterwards, when the same
friendly monk who had narrated to Don Juan the circumstances of
the Auto-da-fé, came to apprise him that his servant had fulfilled his
errand, and was waiting with the horses.
Don Juan rose and met him. His face was sad; it would be a sad
face always; but there was in it a look as of one who saw the end,
and who knew that, however dark the way might be, the end was
light everlasting. "Look here, my friend," he said, for no concealment
was necessary there; truth could hurt no one. "See how wondrously
God has dealt with me and mine. Here is the record of the life and
death of my honoured father. For three-and-twenty years he lay in
the Dominican monastery, a prisoner for Christ's sake. And to my
heroic martyr brother God has given the honour and the joy of
unravelling the mystery of his fate, and thus fulfilling our youthful
dream. Carlos has found our father!"
He went forth into the hall, and bade the other monks a grateful
farewell. Old Fray Bernardo embraced and blessed him with tears,
moved by the likeness, now discerned for the first time, between the
stately soldier and the noble and gentle youth, whose kindness to
him, during his residence at the monastery three years before, he
well remembered.
Then Don Juan set his face towards Nuera, with patient
endurance, rather sad than stern, upon his brow, and in his heart "a
grief as deep as life or thought," but no rebellion, and no despair.
Something like resignation had come to him; already he could say,
or at least try to say, "Thy will be done." And he foresaw, as in the
distance, far off and faintly, a time when he might even be able to
share in spirit the joy of the crowned and victorious one, to whom,
in the dark prison, face to face with death, God had so wondrously
given the desire of his heart, and not denied him the request of his
lips.

XLIX.
Farewell.

"My country is there;

Beyond the star pricked with the last peak of snow."-
-E. B. Browning.
About a fortnight afterwards, a closely veiled lady, dressed in deep
mourning, leaned over the side of a merchant vessel, and gazed into
the sapphire depths of the Bay of Cadiz. A respectable elderly
woman was standing near her, holding her pretty dark-eyed babe.
They seemed to be under the protection of a Franciscan friar; and of
a stately, handsome serving-man, whose bearing and appearance
were rather out of keeping with his supposed rank. It was said
amongst the crew that the lady was the widow of a rich Sevillian
merchant, who during a residence in London some years before had
married an Englishwoman. She was now going to join her kindred in
the heretical country, and much compassion was expended on her,
as she was said to be very Catholic and very pious. It was a signal
proof of these dispositions that she ventured to bring with her, as
private chaplain, the Franciscan friar, who, the sailors thought, would
probably soon fall a martyr to his attachment to the Faith.
But a few illusions might have been dispelled, if the
conversation of the party, when for a brief space they had the deck
to themselves, could have been overheard.
"Dost thou mourn that the shores of our Spain are fading from
us?" said the lady to the supposed servant.
"Not as I should once have done, my Beatriz; though it is still
my fatherland, dearest and best of all lands to me. And you, my
beloved?"
"Where thou art is my country, Don Juan. Besides," she added
softly, "God is everywhere. And think what it will be to worship him
in peace, none making us afraid."
 "And you, my brave, true-hearted Dolores?" asked Don Juan.
"Señor Don Juan, my country is there, with those that I love
best," said Dolores, with an upward glance of the large wistful eyes,
which had yet, in their sorrowful depths, a look of peace unknown in
past days. "What is Spain to me--Spain, that would not give to the
noblest of them all a few feet of her earth for a grave?"
"Do not let us stain with one bitter thought our last look at
those shores," said Don Juan, with the gentleness that was growing
upon him of late. "Remember that they who denied a grave to our
beloved, are powerless to rob us of one precious memory of him. His
grave is in our hearts; his memorial is the faith which every one of
us now standing here has learned from him."
"That is true," said Doña Beatriz. "I think that not all thy
teaching, Don Juan, made me understand what 'precious faith' is,
until I learned it by his death."
"He gave up all for Christ, freely and joyfully," Juan continued.
"While I gave up nothing, save as it was wrenched from my
unwilling hand. Therefore for him there is the 'abundant entrance,'
the 'crown of glory.' For me, at the best, 'Seekest thou great things
for thyself, seek them not. But thy life will I give unto thee for a prey
in all places whither thou goest.'"
Fray Sebastian drew near at the moment, and happening to
overhear the last words, he asked, "Have you any plan, señor, as to
whither you will go?"
"I have no plan," Don Juan answered. "But I think God will
guide us. I have indeed a dream," he added, after a pause, "which
may, or may not, come true eventually. My thoughts often turn to
that great New World, where, at least, there should be room for
truth and liberty. It was our childhood's dream, to go forth to the
New World and to find our father. And the lesser half of it,
comparatively worthless as it is, may fitly fall to my lot to fulfil,
another worthier than I having done the rest." His voice grew
gentler, his whole countenance softened as he continued,--"That the
prize was his, not mine, I rejoice. It is but an earnest of the nobler
victory, the grander triumph, he enjoys now, amongst those who
stand evermore before the King of kings--CALLED, CHOSEN, AND
FAITHFUL."

Historical Note.

It may be asked by some thoughtful reader who has followed the

narrative of the foregoing pages, How much is fact, how much
fiction? As the writer's sole object is to reveal, to enforce, and to
illustrate Truth, an answer to the question is gladly supplied. All is
fact, except what concerns the personal history of the Brothers and
their family. Whatever relates to the rise, progress, and downfall of
the Protestant Church in Spain, is strictly historical. Especially may
be mentioned the story of the two great Autos at Seville. But much
of interest on the subject remains untold, as nothing was taken up
but what would naturally amalgamate with the narrative and it was
not designed to supersede history, only to stimulate to its study.
Except in the instance of a conversation with Juliano Hernandez,
another with Don Carlos de Seso, and a few words required by the
exigencies of the tale from Losada, the glorious martyr names have
been left untouched by the hand of fiction. It was a sense of their
sacredness which led the writer to choose for hero a character not
historical, but typical and illustrative. But nothing is told of him which
did not occur over and over again, if we except the act of mercy
which is supposed to have shed a brightness over his last days. He is
merely a given example, a specimen of the ordinary fate of such
prisoners of the Inquisition as were enabled to remain faithful to the
end; and, thank God, these were numerous. He is even a favourable
specimen; for the conditions of art require that in a work of fiction a
veil should be thrown over some of the worst horrors of persecution.
Those who accuse Protestant writers of exaggeration in these
matters, little know what they say. Easily could we show greater
abominations than these; but we forbear.
As for the joy and triumph ascribed to the steadfast martyr at
the close of his career, we have a thousand well-authenticated
instances that such has been really given. These embrace all classes
and ages, and all varieties of character, and range throughout all
time, from the day that Stephen saw Christ sitting on the right hand
of God, until the martyrs of Madagascar sang hymns in the fire, and
"prayed as long as they had any life; and then they died, softly,
gently."
It is not fiction, but truest truth, that He repays his faithful
servants an hundred-fold, even in this life, for anything they do or
suffer for his name's sake.

PRINTED IN GREAT BRITAIN.

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