41.
92 But using a distinction like the one just mentioned for the radically different task of identifying whether a particular law is within or outside a constitutional head of legislative power invites attention to some underlying assumptions that its use entails.
93 The references made in Huddart Parker to the power of incorporating trading or financial corporations resting with the States, and the power of incorporating a foreign corporation resting with the relevant foreign country, were understood in that case as bringing with them all of the consequences that flow from a choice of law rule. In particular, the conclusion that s 51(xx) conferred no power to make laws providing for the incorporation of companies was seen as invoking principles of the kind discussed and applied in Bateman v Service[1]. In that case the Privy Council, on appeal from the Supreme Court of Western Australia, held that the Joint Stock Companies Ordinance 1858 (WA) did not apply to foreign companies or companies incorporated out of Western Australia (in that case Victoria) so as to require registration of the company under the Ordinance if the liability of the corporators for contracts made in Western Australia was to be limited. The Privy Council took the relevant principle to be a principle of comity, stated by Story[2] as being that:
"In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interests."
It followed, so the Privy Council held in Bateman v Service[3], that "[i]t is not to be presumed that there was an intention [in the Western Australian Ordinance], contrary to the comity of nations, to prevent a foreign incorporated company carrying on business at all in the colony" (emphasis added). Accordingly, s 4 of the Western Australian Ordinance, providing that each partner was to be severally liable for the whole debts of the partnership, if more than 10 persons carried on in partnership any trade or business having gain for its object without being registered as a company under the Ordinance or otherwise incorporated, was construed as not embracing a corporation formed in Victoria.
