Attorney-General of New Zealand v Ortiz: CA 2 Jan 1982

The defendant was to sell a Maori carving which had been unlawfully exported from New Zealand. The Attorney General sought its recovery and an injunction to prevent its sale, relying on the Historical Articles Act 1962. The judge had ordered its return.
Held: The appeal succeeded. The section could only take effect once forfeiture had occurred. Since that had not occurred, the Crown had no right of ownership or to possession. The section operated as a penal code and as a foreign penal code it was unenforceable in England.
Lord Denning MR said that it was agreed that a foreign penal provision would be unenforceable, but went on to consider, obiter, what would amount to a penal or revenue provision: ‘Then what is the genus? Or, in English, what is the general concept which embraces ‘penal’ and ‘revenue’ laws and others like them? It is to be found, I think, by going back to the classification of acts taken in international law. One class comprises those acts which are done by a sovereign ‘jure imperii,’ that is, by virtue of his sovereign authority. The others are those which are done by him ‘jure gestionis,’ that is, which obtain their validity by virtue of his performance of them. The application of this distinction to our present problem was well drawn by Dr. F. A. Mann 28 years ago in an article ‘Prerogative Rights of Foreign States and the Conflict of Laws’ in Transactions of the Grotius Society (1954) 40 Tr.Gro.Soc. 25, reprinted in his Studies in International Law (1973), pp. 492 to 514.
Applied to our present problem the class of laws which will be enforced are those laws which are an exercise by the sovereign government of its sovereign authority over property within its territory or over its subjects wherever they may be. But other laws will not be enforced. By international law every sovereign state has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority.
If this be right, we come to the question: what is meant by the ‘exercise of sovereign authority’? It is a term which we will have to grapple with, sooner or later. It comes much into the cases on sovereign immunity and into the State Immunity Act 1978: see sections 3(3)(c) and 14(2)(a). It was much discussed recently in I Congreso del Partido [1983] 1 A.C. 244 and by Hazel Fox ‘State Immunity: The House of Lords’ decision in I Congreso del Partido’ in the Law Quarterly Review (1982) 98 L.Q.R. 94. It can provoke much difference of opinion as is shown by the differences amongst the Law Lords on the facts of that very case. But, difficult as it is, it must be tackled.
I suggest that the first thing in such a case as the present is to determine which is the relevant act. Then to decide whether it is of a sovereign character or a non-sovereign character. Finally, to ask whether it was exercised within the territory of the sovereign state-which is legitimate, or beyond it-which is illegitimate.’
Ackner LJ gave as his reason for finding that the New Zealand statute was penal the fact that: ‘It concerns a public right – the preservation of historic articles within New Zealand – which right the State seeks to vindicate. The vindication is not sought by the acquisition of the article in exchange for proper compensation. The vindication is sought through confiscation.’


Lord Denning MR, Ackner and O’Connor LJJ


[1982] 3 WLR 570, [1982] 3 All ER 432


England and Wales


Appeal FromAttorney-General of New Zealand v Ortiz ChD 1984
The New Zealand government sought the return of a Maori carving which had been bought by the defendant after it had been illegally exported from New Zealand. The defendant replied that an English court should not itself enforce a foreign penal . .

Cited by:

Appeal fromAttorney-General of New Zealand v Ortiz HL 3-Jan-1983
The Attorney General had sought the return of a valuable Maori carving which had been illegally exported from New Zealand and was to be sold by the defendant. He appealed against a finding that the provision (s12 Historical Articles Act 1962 of New . .
CitedMbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
ApprovedRe State of Norway’s Application (No 2) HL 1989
The government of Norway sought evidence here to support a claim for tax in Norway.
Held: The State of Norway’s application requesting the oral examination of two witnesses residing in England did not fall foul of the Revenue rule. A claim . .
CitedIran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .
Lists of cited by and citing cases may be incomplete.


Updated: 28 May 2022; Ref: scu.245568