"Where -

(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description he has ascertained;

(b) after making all reasonable enquiries, the applicant has not sufficient information to enable him to decide whether to commence a proceeding in the Court to obtain that relief; and

(c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in his possession any document relating to the question whether the applicant has the right to obtain relief and that inspection of the document by the applicant would assist him to make the decision -

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c)."

The following is a summary of the relevant facts. The appellant and the first respondent are sister and brother. The appellant has had a right of permanent residence in Australia for a number of years and lives in Victoria. The second respondent is the first respondent's wife and they have lived and carried on business for a number of years in New South Wales. The third respondent is a corporation owned and controlled by the first and second respondents.

The claims which the appellant believes she may have arise out of interests in the estate of the late father of the appellant, in particular, and of the first respondent. Their father, Kil Sub Won, died some years ago leaving an estate consisting, so it is believed, entirely of land in the province of Chungcheong Namdo which, for practical purposes, was divided into some 38 lots, although the precise number has not been conclusively established. There was some dispute as to the date of death of the father in that it seems that he and his five other children disappeared many years ago. It is not disputed, however, that the Family Court in Seoul declared in 1991 that he and the other five children disappeared on 27 June 1950 so that by Korean law were all deemed to have died on 27 June 1955. There was also evidence that under Korean law the surviving children of Kil Sub Won were and are entitled to equal shares in the estate property in the absence of any testamentary disposition, of which there was none.

What contact the appellant and the first respondent had with their parents and with the estate property over the years after their father disappeared or died is not entirely clear from the affidavit material. Their mother died on 27 March 1955 and thereafter the appellant went to Germany in about 1957 where she became a German citizen. She came to live in Australia in 1972 where she and her family have since resided.

The first respondent, although the eldest son of Kil Sub Won, is younger than the appellant. It appears that he stayed with the appellant's family in Germany in the 1960's while he was studying but also subsequently came to Australia where he has lived with his wife since about 1974. He became an Australian citizen in 1977. The first respondent was employed as a boiler-maker and welder, at least from the time he came to Australia and, so far as the evidence goes, he had no other employment until he became a nursing home operator when he purchased the Windermere nursing home in late 1989 or early 1990 and its acquisition is fundamental to the appellant's case.

It seems that in 1978 the appellant travelled to South Korea and there visited her aunt, the surviving sister of Kil Sub Won. She obtained copies of title documents to the land which constituted her father's estate and brought them back to Australia. On her return to Australia in that year she visited the first respondent and gave him those copies but the first respondent says that he received only some copies of the title documents from Korea. At the time the first respondent was working for a company of which the appellant's husband was a managing director. At about that time the appellant alleged that she and her husband gave a guarantee to a bank to enable the first and second respondents to buy a house and that it was agreed between them that the first respondent might sell such of the estate land as was necessary to repay the loan. However these matters are disputed by the first respondent.

On 23 January 1979 a cousin, Che Koo Won, was appointed "property custodian" of the estate land. The appellant asserts that this appointment was made at the request of the first respondent who, it is said, travelled to South Korea in 1979, but the first respondent denies going there, saying that he had neither an Australian nor any other passport at that time.

Although it is suggested that the land had at one time been used by local villagers, it is by no means clear what use it had been put to since the death or disappearance of Kil Sub Won, nor who otherwise had been in possession of that land or any part of it. Further there seems no evidence of what Che Koo Won did with the land as custodian.

Nevertheless, in respect of 11 lots of their father's land it seems that in 1972 or more probably in October 1974 those lots were transferred to and registered in the name of a body known as the Won Family Association, a form of co-operative but having no connection with the first respondent, his father or the custodian who each also bear the name Won. The appellant became and remains concerned about the disposition of this land when she discovered the fact of the transfer in 1990, more especially because it would appear that her father purported to sign the transfer and a related "guarantee" in 1974 although he had been missing since the time of the Korean war. The appellant persuaded the first respondent to commence proceedings to recover the 11 lots but the claim was dismissed by the criminal division of the Tae Jeon District Court on 18 June 1992 and later on appeal. The description of the circumstances surrounding the transfers and the reasoning of the Court seem a little strange to those with a common law background. The custodian gave evidence which suggested that the transfer and guarantee were false, presumably upon the basis that the father had died many years before. Although the Court said that part of his testimony "seems to prove it is false", nevertheless they found that the plaintiffs had failed to prove that the documents were false. The dismissal of the claim and the appeal, however, merely leaves uncertain who it was that was responsible for the sale in 1974 and whether the seller was in fact the first respondent who, it is suggested, had thereby obtained the proceeds of the disposition. Of course he was the party who sought to challenge the association's title but it might be thought that there was little else that he could do once the nature of the transaction was discovered by his sister.

At all events it is unclear how their cousin Che Koo Won came to be appointed property custodian of their father's estate in 1979, even the first respondent conceding that he would otherwise have been appointed custodian if he had been in Korea at the relevant time. It should be noted that the type of custodianship was not similar to the office of administrator of a deceased's estate, for in this case no order had yet been made that the father was deemed to have died in 1955.

In the early 1980's the appellant made a number of enquiries about the land in her father's estate. When speaking to the first respondent about it she was led to believe that it was of little value and that the costs associated with any sale would exceed the proceeds. In about 1985 the appellant went to South Korea and was told there that the price of land in Chungcheong Namdo had risen significantly. On her return to Australia she asked the first respondent for the copies of the title documents but was told they had been lost while moving house, a matter which is not disputed by the first respondent.

There seem to have been no further relevant dealings between the parties until about late 1989 or early 1990. At that time the first respondent, in the course of a telephone conversation, told the appellant that he had bought a nursing home called the Windermere Nursing Home in Sydney for $2 million and that he had raised the necessary funds by way of a bank loan at 20% interest per annum. It is not disputed that the nursing home is owned by the third respondent, Korlim Pty. Ltd. of which the first and second respondents are the only directors and shareholders. Shortly afterwards, probably in December 1989, the appellant went to South Korea in order to make extensive enquiries about the estate land. It was then that she learned that Che Koo Won had been appointed property custodian and had possession of the land title documents. She visited the registry of land titles in Chungcheong Namdo and discovered that there had been dealings with respect to the land, though those dealings were not precisely described by her. She also formed the impression that the custodian, Che Koo Won, had sold or attempted to sell some lots of the land, although it is not clear upon what basis she formed this impression. The first respondent seems likewise to have formed this impression but suggested that if they took proceedings Che Koo Won might be convicted of a crime. At all events when the appellant told Che Koo Won about the information she had in relation to the latter dealings he resigned, saying he wished no further involvement with the estate and handed to her the original title documents. It seems that when the first respondent was told of this he first suggested that they be both registered as custodians. For one reason or another that could not be effected and some time later the first respondent, without the appellant's knowledge or consent, arranged that his brother-in-law Mr Che Won Pung be appointed custodian of the estate. The appointment is conceded, but the surrounding circumstances denied by the first respondent. It seems also that in 1990 the Seoul Family Court ordered that neither the appellant nor the first respondent have any dealings with the estate or the land therein, but the precise reasons for the making of the order and at whose instigation it was made are not made clear.

It was in or about late 1990 that the appellant discovered the transfer of the eleven lots of estate land to the Won Family Association. Although there is some uncertainty about the matter it seems likely that both agreed that steps should be taken to challenge that transfer which, as stated above, was attempted, but unsuccessfully.

In April 1991 the Seoul Family Court adjudicated on the disappearance of Kil Sub Won and five of his children, these proceedings being brought so that the appellant and first respondent might become registered and have power to deal with the estate property. They agreed thereafter that the property should be dealt with by registration in their names jointly but there is much confusion as to what then occurred. It is agreed that the first respondent asked the appellant for her permanent residency certificate. She said she gave him a certificate, that she asked why their names had not been registered and that she sent him three further copies of the certificate to enable registration. The first respondent says it was not in proper form and that he did not receive a suitable certificate until January 1994. In the meantime the litigation relating to the transfer of the eleven lots to the association continued but the appellant says that she was told very little about the proceedings and was not told of the result; indeed she was told nothing of any of the proceedings relating to the estate property until December 1994, although the first respondent insists that she was kept informed of these matters.

There seems little doubt, however, that the first respondent's brother-in-law remained the property custodian and that the appellant's and first respondent's interests were not immediately registered in the estate property. In fact it seems that their names had not been registered when the present application commenced, but the registration of 20 lots has now been effected.

So far as the appellant was concerned nothing relevant occurred until late 1994 when she visited the first and second respondents with her husband. She says she observed that they had acquired many valuable assets, the first respondent telling her that they had purchased a Mercedes Benz 420 and a BMW. He had also bought a ring and watch for the second respondent worth between $113,000 and $133,000. The first respondent had spent in excess of $40,000 on membership of a golf course and it was proposed to spend some $1.8 million on refurbishing the nursing home. It would seem the appellant's suspicions as to the use of the property were exacerbated by this information. She sought further information about the estate property and it was then that she was told of the appointment of the brother-in-law Che Won Pung as custodian.

Thereafter she again visited South Korea, where she met briefly with Che Won Pung. On the second occasion she discovered that a further seven lots of the estate property had been transferred also to the Won Family Association by way of "gift" in July 1994. This she discovered by examining documents in the Land Titles Office which showed that none of the estate was registered in either her name or in that of the first respondent, that eleven lots were in the name of the Won Family Association (which were the subject of the court case) and that a further seven lots had been registered only on 13 July 1994 but which was said to have resulted from a gift on 1 March 1980 at a time when Che Koo Won was still custodian. Not surprisingly the appellant's suspicions were aroused by this unexplained act of the former custodian and by the failure of the new custodian to take any steps to prevent the registration. Thereafter the appellant spoke both to Che Won Pung and, by telephone, to the first respondent. They both advised her that she should take no further action but wait until 31 December 1994 when the seven lots would be transferred back to the estate, for reasons which are not entirely clear. It was said that they could then jointly register their names over those lots. From friends who seem not to be legally qualified the appellant says she discovered that 1994 was a year in which the South Korean government allowed people to claim ownership when the registered owner could not be found, so that having been persuaded to wait beyond the end of that year she was precluded from challenging the gift and transfer in 1980. The first respondent denies any such purpose but intimated that if they won the proceeding relating to the eleven lots then they could likewise succeed in having the seven lots transferred back from the Association. At all events no proceedings were then taken and for various reasons no proceedings have subsequently been taken to recover the seven lots of land.

These latter events provoked the appellant to write in January 1995 to the first respondent asking him to tell her how he had financed the purchase of the nursing home, its proposed renovations, and the purchase of the cars and jewellery. A further letter was sent the next day but no response was received. She then consulted her present solicitors who also wrote on 1 February 1995 seeking similar information as to the accumulation of his assets. To that there was an answer from the first respondent's solicitors stating that she should contact him directly but it seems that, despite further correspondence, no such information was received, although the appellant had threatened to commence proceedings to obtain it. It is unnecessary to examine that further correspondence as the originating motion seeking pre-action discovery was filed on 11 May 1995.

In the meantime the appellant had again returned to South Korea in February 1995. She tried to register her name over the remaining 20 lots of the land but was advised that she would need the first respondent's personal seal in order to complete registration in both their names. When she sent a facsimile letter to the first respondent seeking a seal, he responded that "under no circumstances am I allowing you to apply a register seal". She returned to Australia but after further correspondence she went again to South Korea in July 1995 where she was at last able to register her and the first respondent's names over the remaining 20 lots. However by this time the Won Family Association had also registered its name over those lots claiming some legal interest in the land. The association had frozen further dealings. Consequently the appellant instructed Korean lawyers to represent the estate herself and the first respondent in proceedings commenced on 10 November 1995 to challenge the claim of the association and that is still proceeding in the Korean courts. It has not been suggested, however, that the appellant has any claims against the first respondent in respect of those 20 lots. At about the same time Che Won Pung resigned as custodian of the estate.

The present application when instituted in May 1995 sought preliminary discovery from the respondents of all documents relating to:

"(a) dealings in the estate since 1979;

(b) any funds transferred from South Korea to the respondents in Australia;

(c) the financing of the initial acquisition of the nursing home, and other assets of the respondents including motor vehicles and jewellery; and

(d) financing of the proposed extensions and renovations to the nursing home."

I should add that the orders now sought on appeal are rather more comprehensive in the sense that they are more specific and there is also a further order sought seeking all documents relating to court proceedings in South Korea relating to dealings in the estate of Kil Sub Won.

The application was supported by a single affidavit of the appellant but, since the issue of the proceeding, the litigation has taken on a life of its own with two further affidavits from the appellant, two responding affidavits from the first respondent, and some additional affidavits relating to Korean law or translating some of a large number of Korean documents exhibited to the affidavits, in all extending over 370 pages. The substance of that material has already been summarised and it is sufficient to summarise the respondents' defence by referring to a paragraph in the first respondent's first affidavit in which generally he rejected the assertions of the appellant and said:

"I have never received any money from our late father's estate in Korea. Further, although my wife and I have accumulated assets over time, we have both worked very hard to do so. I deny I ever told Schmidt and her husband that my wife and I had purchased a Mercedes Benz and a BMW. I agree that I purchased a ring and a watch for my wife. I dispute the allegation that the watch cost $40,000, I think it cost $20,000. The golf course membership cost me $40,000. I never said that I intended to renovate and extend the nursing home at the approximate cost of $1.8 million. The renovations at first cost $140,000 and we have ended up now only spending $80,000. No work has been done as yet. Under the terms of government funding, 80% of these costs will be repaid to Korlim Pty. Ltd. by the Government over a 10 year period. I further state that this information is personal to my wife and I and not relevant for the purposes of the application. I further state that a great number of the assets that we have accumulated over time have been purchased with money borrowed from financial institutions and that we are still subject to obligations on them."

Elsewhere he denied that he had sold any land owned by the estate in Korea to buy the nursing home or that there had been any funds transferred from Korea to the respondents.

The originating motion came on for hearing before a judge of this Court on 15 March 1996. It goes without saying that, as the proceeding was brought by originating motion, there were no pleadings and no draft statement of claim or outline of causes of action put before the Court save that which could be gleaned from a reading of the affidavits. This is not entirely surprising in that the rule is designed to enable material to be obtained in circumstances where it is reasonable to believe only that the appellant "may have the right to obtain relief", but the information then available is insufficient to support a properly pleaded cause of action. In other words the rule is not designed for cases where the applicant "is seeking to obtain material to verify a cause of action which it already knows that it has": see Mercantile Mutual v. Household Financial Services (supra) at p.7. Precisely how the case was put on behalf of the appellant below is not clear but for present purposes it seems that it was along the lines of a possible claim for relief against the respondents for breach of trust or for being knowingly involved in breaches of trust. I assume that such a description was intended to cover breaches of fiduciary duty or breaches of such duties of a like kind as may exist under Korean law, there being presently no relevant evidence showing that that law is different from Victorian law, whatever one may speculate as being the true position. It would thus seem, as will be discussed further below, that it was contended that there was reasonable cause to believe that directly or, more likely, indirectly the first respondent was in a position to influence the disposition of 18 lots of the father's land in a way which might have resulted in him receiving the proceeds of those dispositions or at least some other valuable consideration for participating in or acquiescing in one or both of the dispositions to the Won Family Association, for which he must account to his sister.

As argued before the learned judge it would seem that counsel for the appellant put submissions that each of the paragraphs (a), (b) and (c) of the rule had been satisfied, in particular that the appellant may have had a right to obtain relief in the court, and that it was appropriate therefore that the discretion in the rule should be exercised in her favour. For the respondents it was contended that the affidavit evidence (there being no cross-examination) did not disclose that there was reasonable cause to believe there was or might be a good cause of action against the respondents in Victoria. Further it was submitted that the evidence did not disclose any nexus with Victoria other than the fact that she lived here. Further it was said that she had commenced proceedings concerning the estate in South Korea which were still awaiting determination. Finally it was said that the appellant had failed to act promptly and make all reasonable enquiries. It was then submitted that this Court was a clearly inappropriate forum for the appellant's claim against the respondents to be heard, having regard to the evidence and in particular to the fact that the subject land was all in South Korea and that the respondents and their assets were all in New South Wales.

The learned primary judge refused the application. In the course of her reasons she said, after setting out the facts summarised above, that the purpose of r.32.05 is "to enable a person to determine whether or not he or she has a cause of action in this Court against an identified prospective defendant, and the exercise of the rule is carefully circumscribed by authority". After referring to the necessity for the court to be satisfied of the matters set out in paragraphs (a), (b) and (c) of the rule, she said that it was also necessary to show that it was "an appropriate case for the exercise of the discretion ... conferred upon the court". There was then brief reference to the argument that there had been unreasonable delay in bringing application under the rule, counsel having cited Generation Victoria v. O'Callaghan (18 August 1995, Mandie, J, unreported). Her Honour, however, said that the facts in that case were very different from those in the present and, without explicitly rejecting the defendants' argument on that ground, she said that the decision served "as a reminder of the wide range of possible issues" which might be taken into account in exercising the discretion.

The second issue which the judge addressed was the argument relating to the Court's jurisdiction. It is desirable to set out how she expressed the basis of that submission:

"16. The second ground of Mr Anderson's submission is that proceedings involving the estate have been commenced in South Korea, and are still awaiting determination. The third ground is that the material before the court does not disclose any nexus with Victoria other than the fact that the applicant resides in Victoria. The estate property is wholly in South Korea, and the assets of the respondents' wholly in New South Wales."

Her Honour then referred to arguments by counsel on behalf of the appellant that there was reasonable cause to believe that she might have a right to obtain relief, "despite the obvious problems arising from the location of the relevant assets". She said that counsel "accepted the possibility of an application being brought to stay proceedings for such relief on the ground of forum non conveniens." To this the judge said that, were she considering whether the appellant had satisfied the requirements of paragraph (a), "I might perhaps have been convinced by that submission." However she then said that she was at that stage considering the question "whether the exercise of the discretion is appropriate". There followed two paragraphs in which, as I would understand it, the learned judge expressed her reasons for rejecting the application:

"19. Having considered the matter on the basis of the judgment of the majority in the High Court in Voth v. Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538, I find this court, for the reasons stated by Mr Anderson and summarised in paragraph [16] above, (and noting also that the property in South Korea is real property) to be a clearly inappropriate forum for the determination of the issues raised by the matters which concern the applicant. The High Court in Voth indicated that the 'clearly inappropriate forum' test should be applied to applications for leave to serve originating process outside the jurisdiction, applications to set aside service and applications for a stay of action. In my view it is also a proper consideration to be taken into account when contemplating the exercise of the discretion conferred by rule 32.05.

20. On that basis, I consider that even should I find that the requirement of paragraphs (a), (b) and (c) were met, this is not an appropriate case for the exercise of that discretion. Accordingly the application is refused ...".

(ii) Whether appellant entitled to order under r.32.05

The issue squarely raised by this appeal is whether the learned judge was correct to apply the test laid down in Voth to an application of this kind and in the circumstances revealed in the evidence. As I would understand it, although the judge's reasons do not make this clear beyond argument, the objection successfully raised is not that the application itself ought to be refused (or stayed) by reason of the application of the Voth principle, but rather the proposed action itself, i.e. the action as to which there must be reasonable cause to believe that the applicant may have the right to obtain relief in this Court, is such as would be stayed under that principle or at least was sufficiently doubtful to justify the exercise of the judge's discretion to refuse the application.

One must accept that, the decision to refuse relief being interlocutory, the appellant" must show that it was either wrong or attended by sufficient error as to justify intervention by this Court and that injustice would be caused to the appellant if leave were refused. For practical purposes this Court must now be satisfied that there was error if it is to grant leave and permit the appeal, as well as being satisfied on the issue of injustice. As to the matter of injustice, it would seem that this kind of application is rather different from the conventional application for discovery in an existing action, at least where preliminary discovery of this kind has been refused. The premise upon which such an application is brought is that it is believed that the appellant may have a cause of action and would in the ordinary course of events be unable to obtain relief in the proposed proceeding in the absence of the information that is sought, if that information were to confirm the belief. In other words she would effectively be prevented from making her proposed claim. Assuming there to be a proper basis for granting relief under the rule, I would consider it an injustice if the appellant were unable to obtain an order of the kind sought.

It is necessary, first, to determine whether the learned judge erred in exercising her discretion to refuse relief. The rule, first introduced in 1986, should be construed benevolently because its intention was both to assist claimants without sufficient, precise information to launch an action and to prevent the bringing of speculative suits: Mercantile Mutual v. Household Financial Services at p.8. Applications, however, must not be based upon "mere hunches" or such flimsy foundations as will not satisfy the requirement that "reasonable cause" should be shown for the necessary belief. That is not to say, however, that some form of "fishing" enquiry is not justified under the rule; indeed it is the very purpose of the rule to permit an enquiry of this kind, if the required conditions are made out. As to the proper application of the rule see Paxus Services Ltd. v. People Bank Pty. Ltd. [1990] FCA 500; (1990) 99 ALR 728, followed in Scarletti Pty. Ltd. v. Millwood Printing Co. Pty. Ltd. (Full Court, 20 July 1994, unreported) at pp.4, 11-12. Beyond that one would not wish any further to fetter the application of the rule.

Then, as to the refusal of the learned primary judge to grant "preliminary" discovery pursuant to r.32.05, I am of opinion that she erred in seeking to apply to the present circumstances the "clearly inappropriate forum" test laid down in Voth. That error lay not so much in asserting that Voth posed the test applicable to the declining of jurisdiction when it is said that a foreign court should determine a proceeding, but in saying that it posed the relevant test for deciding whether an order should be made on the present application.

The present application, however, is a proceeding between parties who reside in two different States in circumstances where the appellant's cause or causes of action, ex hypothesi, has or have not been and cannot yet be formulated with precision. This latter factor in itself should give cause for hesitation before the proposed proceeding (or this application) is characterised as having been brought in a clearly inappropriate forum. No doubt there may be cases where it will be appropriate to characterise any attempt to bring an action in this jurisdiction as forum shopping, inasmuch as it may be seen that the proposed action, howsoever formulated and whosoever was involved, could have no legitimate connection with this jurisdiction. Then again it may be possible to reject the application itself as in effect an abuse of process. Neither the appellant's present application nor her proposed action can yet be so characterised.

Three principal errors may be identified. First, that in seeking to apply the Voth test the learned judge placed undue emphasis on the location of the so-called "assets", the father's estate real property in South Korea and the respondents' assets in New South Wales, by misunderstanding the scope of the appellant's proposed in personam claims but also by failing to take any other factors into account. Secondly, the judge resolved the present application not by applying the Voth test directly to that application, but by seeking to apply it to the proposed action at a time when the appellant's rights to relief, ex hypothesi, could not yet be formulated with precision or certainty, and neither could the other factors in that action relevant to the application of the Voth test. Thirdly, and most significantly, her Honour wrongly sought to apply the Voth test to proceedings between residents of different States of the Commonwealth which, for purposes of personal or transitory jurisdiction, can now be described, subject to the Cross-Vesting legislation, as a single jurisdictional area, at least for the Supreme Courts. Thus the appropriate remedy, if any, was transfer pursuant to that legislation, not dismissal of the application.

(a) The relevance of the location of assets to the Voth test.

There was, in my opinion, an undue concentration on the location of assets in the learned judge's reasons, apparently to the exclusion of all other factors. That the father's estate consisted and consists in real property in South Korea is of comparatively modest significance if one has regard to the limited nature of the appellant's claims to that estate, as contrasted with the funds said to have been obtained from misapplication of the father's estate. The location of the New South Wales assets is of even less relevance in that, whether or not they are the product of that misapplication, their present location can be relevant only to the enforcement of any judgment.

In the first place, so far as the Korean assets are concerned, the judge seems to have taken into account restrictions on the exercise of substantive jurisdiction applicable, for present purposes, only where the suit concerns title to, possession of or trespass upon land outside the jurisdiction. In the present case she appears to have relied upon the fact that land in South Korea is both the subject of proceedings in that country, not yet determined (see the second ground apparently adopted from paragraph 16 in the reasons for judgment), and is "estate property" outside Victoria liable to be affected by the proposed proceeding. But in fact the proceeding does and will not involve any land which is the subject of the present Korean proceedings, which, as I would understand it, are confined to the 20 lots still in the joint names of the appellant and first respondent; and those claims presently thought likely to be pursued by the appellant arise out of the suspected misapplication of the other 18 lots and do not involve title to, possession of or trespass to land in South Korea or in any other foreign jurisdiction. So they would not attract the principle known as the Mocambique rule, i.e. the rule laid down in British South Africa Co. v. Companhia de Mocambique (1893) AC 602 as recently discussed in Dagi v. BHP (No. 2 (1997) 1 VR 428 at 433-441. A further but different factor was then added, namely the respondents' residence and assets in New South Wales, which was said to be relevant to the application of the Voth test. Why that was seen as relevant is not clear as the Mogambique rule could not have been invoked. One assumes that it was argued that New South Wales was the appropriate jurisdiction so far as that property was concerned, but it was not asserted that inspection thereof would be necessary before or during any trial. Those assets were said only to have been the product of any alleged misapplication of funds. They seem to be irrelevant to any question of jurisdiction, unless, perhaps the Cross-Vesting legislation were invoked, but it has not been and there was no reference to it by the judge.

It is first desirable to deal with the attempt to invoke the Mocambique rule, albeit that case was not specifically referred to in the judgment. The "second ground" of counsel's arguments, summarised in para.16 of the judgment and apparently adopted by the judge, appears to be based on a misapprehension of the appellant's proposed claims, whichever way one approaches the respondents' contentions. It has never been suggested by her that she wished to raise issues as to the 20 lots still jointly held in South Korea for that land is, subject to the claim of the Won Family Association, still (or again) held in the joint names of the appellant and the first respondent and thus clearly cannot yet have been converted or otherwise misappropriated by the respondents. The proposed claims relate to what is believed to have been some form of misapplication of the other land formerly owned by their father, being the 18 other lots which are no longer held by the parties.

Moreover, if I correctly understand the case sought to be put forward on the appellant's behalf, the principal assets in question are not the land itself but those which it is believed the respondents brought to Australia or those into which they may have been converted, namely the nursing home, the cars, jewellery and the like possessed and enjoyed by them in New South Wales. Although her claims are believed to have arisen from some improper dealings with the real estate, title, possession or trespass could not be an issue and no claim relating to the converted assets requires to be heard in South Korea, whichever principle one applies. Claims involving breach of trust or fiduciary duty or the like are claims in personam which are not comprehended by the Mocambique rule, as they do not involve title to, possession of or trespass to foreign land. None of the cases in which that principle has been invoked would deny jurisdiction in this Court for the type of claims which I would understand the appellant wishes to bring: see e.g., the cases discussed and analysed by Byrne, J in Dagi at 433-441. Whatever rights the appellant may have, they will be all rights which she can exercise in any jurisdiction where the respondents can be made subject to the personal or transitory jurisdiction of this Court: see e.g. Penn v. Lord Baltimore [1750] EngR 99; (1750) 1 Ves. Sen. 444; Dryden v. Dryden (1876) 2 VLR 74; 2 VLR 153; Ewing v. Orr Ewing (1883) 9 App. Cas. 34 at 40; Dawson v. Perpetual Trustee Co. Ltd. [1953] HCA 83; (1953) 89 CLR 138; Cousins v. Negri [1981] VicRp 78; [1981] VR 824: cf. Nygh: Conflict of Law in Australia (4th ed.) pp.113-119. As was said by that master of equitable principle, Parker, J, in Deschamps v. Miller [1908] 1 Ch. 856 at 863 (cited by Byrne, J in Dagi at 433), in relation to the range of exceptions to the Mocambique rule:

"I think it will be found that they all depend on the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which in the view of a court of equity in this country, would be unconscionable, and do not depend for their existence on the law of the locus of the immovable property."

The rule (or at least the principal aspects of it) is based on the premise that the courts of the country where the land is situated are best placed to determine and enforce orders as to title and possession. That rationale will not and cannot be defeated by permitting the proposed claims to be brought in this jurisdiction. [Interestingly, in the jurisdiction where the respondents reside, New South Wales, the rule has been effectively abolished by the jurisdiction of Courts (Foreign Land) Act 1989 (N.S.W.), but it is here unnecessary to examine to what extent that "jurisdiction" may be enforced elsewhere under the Cross-Vesting legislation.]

The Mocambique rule is the only basis upon which it could have been argued that this Court had no jurisdiction over the proposed action, i.e. that the action will not be justiciable in this Court and thus one which, when brought, will have to be permanently stayed. A fair reading of her Honour's reasons does not suggest that she thought that such an argument was then being or ought to have been pursued; nor was it pursued in this Court. Nevertheless, if the judge thought that questions of direct rights over (if not title to) the Korean land were in issue, as I am inclined to think she did, then the nature of those rights and their possible enforcement may well have had a very significant bearing on what was stated by her to be the exercise of the discretion whether or not to make an order for preliminary discovery. Unless title or possession (or related rights) were thought to be in issue, it is difficult to see why the judge would otherwise have placed such emphasis upon the location in South Korea of the real property. However, as I previously stated, the appellant is not concerned to enforce in this country any such rights, in that those rights over the 20 lots remain in her and the first respondent's names and are in contention only with the Won Family Association, but the rights in question relating to the other 18 lots are or may be rights in personam arising from the conversion or other misapplication of the appellant's rights or interests and the bringing into this country of that which is said to have been wrongly derived from the abuse of those rights or interests. There seems no dispute that the appellant and first respondent both had equal entitlement to all lots as part of their father's estate and, though it might require examination of South Korean law and events in that country, the rights arising out of the alleged misapplication of the 18 lots are clearly not rights subject to the Mocambique rule, nor rights of an analogous kind.

These observations are not intended to suggest that the Voth principle cannot apply where questions relating to foreign land arise but which are not beyond the jurisdiction of this Court by reason of the restrictions imposed by the Mocambique rule. It was, nevertheless, equally inappropriate for the judge to have placed such significance on the location of the Korean and New South Wales assets. That is not to say that the location of disputed assets may not be of significance in applying the Voth test, but in the present case there ought to have been other factors placed in the balance before concluding that Victoria was a clearly inappropriate forum, such as, not the least, the convenience of the parties and the availability of relevant witnesses. In actions of a transnational kind it should be recognised that there is rarely a perfect forum, one that will not cause inconvenience to one party or the other. Here, in the absence of any claim to any direct title or other rights over land in South Korea, the location of the 18 lots should have been but one factor in many to be considered.

Again, the location of the New South Wales assets is of even less significance. They are merely the apprehended product of the respondents' alleged depredations. There seems little reason to inspect them, and even less need for a view at the trial, and their location ought to have been but a minor relevant factor, as compared with, say, the residence of the respondents. In short, failure to rely upon or to take into account any other factors appears to demonstrate a failure to take into account all necessary considerations relevant to the exercise of the discretion imported by the Voth test and likewise under r.32.05.

(b) Failure to apply Voth test to the application itself.

The essential reason for the judge deciding to exercise her discretion against ordering preliminary discovery arose out of the application of the Voth principle. For this purpose I would not understand her to have applied the principle directly to this application, i.e. to the application for preliminary discovery itself, rather she applied it to what she perceived to be the causes of action which the appellant proposed to bring and as to which it was said there was cause to believe the appellant may have a right to obtain relief in this Court. In my opinion, however, it was not appropriate to apply the Voth principle in this case solely by reference to what the proposed action was likely to be.

In the first place, ex hypothesi, there cannot yet be certainty as to the nature of the proceedings which the appellant may ultimately bring. The Voth principle is applied primarily (see Voth at 554-555) to prevent abuse of process and to avoid oppression of defendants who find themselves in foreign jurisdictions in cases where the exercise of jurisdiction by the local court can be characterised as that which would be exercised in a "clearly inappropriate forum". See also Henry v. Henry [1996] HCA 51; (1996) 185 CLR 571 at 586.

Assuming that otherwise the Court has jurisdiction over a defendant, should it be the interlocutory application for pre-action relief which must be so characterised, rather than a substantive proceeding, yet to be brought? In my opinion the Voth principle is to be applied at this stage to the interlocutory application, although the nature of the plaintiff's proposed action and its enforceability in the local forum may well have a bearing on the exercise of the discretion. There may well be cases where the application itself can be seen to be an abuse of process by reason of its being a blatant misuse of the Court's personal jurisdiction, occurring because, on any view of the facts, anticipated rights to obtain relief will be clearly inappropriate for hearing in this Court, e.g., if the only belief is as to rights to claim title over foreign land. It can, however, be said that in most cases an accurate characterisation of the proposed action will not be possible until all necessary facts are ascertained including the materials obtained by pre-action discovery. Just as the rights to relief, i.e. the causes of action here anticipated, are as yet imprecise and uncertain, so the other factors which might or might not make it "clearly" inappropriate for it to be heard in this Court will in most cases be likewise imprecise and uncertain at that stage.

Ordinarily, it would be inappropriate on an application such as the present to determine in advance whether a litigant ought to be shut out by an order staying the claims based on those rights to relief until all relevant facts are known. Though from time to time the answer may be obvious, in the usual case it would not be just to resolve that issue before the plaintiff is in possession of all necessary factual materials. That conclusion might be said to be supported by the language of the rule requiring proof only of cause to believe that the applicant "may have the right to obtain relief in the Court". Those words, especially those emphasised, require reasonable belief as to the possibility of getting relief in this Court, importing only that the plaintiff may have a cause of action which he could bring in this Court and that the defendant will be subject to the Court's personal jurisdiction. Thus applications of this kind ought ordinarily to be granted if the necessary conditions are made out, save only in cases of true abuse of process, leaving questions of "appropriateness", "convenience" and the like as to the substantive proceedings to be raised when the finally formulated proceedings are brought. If the Voth principle is to be applied in relation to applications under r.32.05, the issue is whether or not that application itself ought to be heard in this jurisdiction, albeit that from time to time jurisdictional (and substantive) aspects of the proposed action may bear upon that decision. The judge's expressed conclusions again suggest that her exercise of the discretion miscarried.

(c) Applicability of the Voth test to claims between residents of different States?

The real issue, however, in this case is whether the Voth principle was properly invoked at all, where the parties to the litigation are, on both sides, residents of different States of the Commonwealth.

In my opinion, having regard to the issues raised and to the fact that respondents were served pursuant to the Service and Execution of Process Act 1992, it was not appropriate to consider whether the Voth principle applied, for whether the application should be heard in this Court must now depend on whether the proceeding ought to be transferred pursuant to s.5(2) of the Cross-Vesting Act. Nor would it ordinarily be appropriate to consider the Voth test in relation to the proposed action itself in order to determine whether relief may be obtained in this Court, for whether or not relief will be so obtained will, as things stand, also depend upon the exercise of the Court's powers under the Cross-Vesting Act, assuming that the respondents remain residents of New South Wales.

There are two principal reasons for these conclusions. First, on any proper analysis of the circumstances surrounding the parties' relationships, the respondents could not and cannot contend that a foreign jurisdiction, in particular that of the South Korean courts, ought to be preferred by reason of the fact that the Victorian Supreme Court is, in contrast with those courts, a "clearly inappropriate forum" for the resolution of any reasonably contemplated proceedings between the appellant and the respondents. In other words, the respondents have not been able to "identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff": per Deane, J in Oceanic Sun Line Special Shipping Co.Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197 at 248, in the detailed passage adopted by the majority in Voth: see Voth at 564. Secondly, assuming therefore that the question which is the forum to be preferred is one between States of the Commonwealth, here the Supreme Courts of Victoria and New South Wales, the Cross-Vesting legislation now imposes the relevant and indeed less stringent tests, in effect which is the "more appropriate" court to hear the matter "in the interests of justice", as those tests were expounded in Bankinvest AG v. Seabrook (1988) 14 N.S.W.L.R. 711 esp. at 725 and 730. More significantly for practical purposes, that legislation does not provide for a stay but only for a transfer to the more appropriate court, so far as Supreme Courts are concerned. Consequently, save in exceptional circumstances which need not be here examined, the Voth test is now irrelevant to a consideration of that issue and should in practice be confined to cases where it is arguable that a foreign court should be preferred.

As to the first point, the facts make it clear that the Voth test is here inapplicable both to the application and to any proposed proceedings, at least as presently understood. There may be factors which would otherwise lead to the preferring of the courts in South Korea, such as the presence of the actual land, the probability that Korean law will have to be examined and the likelihood that some, at least, of the witnesses reside in South Korea. But that is not to the point where the party seeking the stay is unable to show that there is an appropriate foreign tribunal, here one in South Korea, to whose jurisdiction the respondents are amenable, as required by Deane, J in the passage quoted above from Oceanic. His Honour prefaced that test by the qualifying adverb "ordinarily" and there may be thought to be some support for that qualification in the judgment of the majority in Voth at p.558 where they say only:

"The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one. .... Indeed, circumstances could exist in which the local court was a clearly inappropriate one notwithstanding that there was no other tribunal which was competent to entertain the particular proceedings. ..."

But the example which the majority then give is not one directed to amenability but to substantive relief, for that example is of a possible claim in tort which is barred in the foreign jurisdiction by the provisions of a legislative compensation scheme. What Deane, J was referring to, however, was the common sense proposition that a defendant cannot seek a stay in reliance on the Voth test if he cannot effectively be sued in the foreign court which he says ought to be preferred. That is not to say that, in one way or another, "long arm jurisdiction" may not be capable of being exercised by a foreign court, but unless the respondents show both that they can be sued in that jurisdiction and that they are willing to subject themselves to it, then it lies ill in their mouths to suggest that courts of the country in which they reside are clearly inappropriate and that it would be oppressive to them to fight the litigation in this country. See also McEntee v. Connor [1994] TASSC 47; (1994) 4 Tas.R. 18 at 25. Whatever view be taken as to amenability, there is no basis for the respondents here to assert, in the light of their residence in Australia, that this Court, as an Australian court, is clearly inappropriate.

So, secondly, the respondents should only be able to contend that the Supreme Court of New South Wales ought to be preferred, having regard to the relevant test. That test should now be seen as being laid down by s.5(2) of the Cross-Vesting legislation, assuming that the respondents are presently, and will be at the time any proposed action is commenced, properly subject to the jurisdiction of the Victorian Supreme Court. It has already been explained why the Mocambique rule does not require any contemplated litigation between the parties to be conducted in South Korea or would otherwise deprive this Court of jurisdiction.

Jurisdiction therefore depends and will depend solely on the amenability of the respondents to any proceedings issued by the appellant. As Dixon, CJ, Williams and Webb, JJ said in Laurie v. Carroll [1958] HCA 4; (1958) 98 CLR 310 at 323: "The defendant must be amenable or answerable to the command of the writ." Then the Court cited with approval part of a passage from Dicey - Conflict of Laws (6th ed.) p.172:

"The service of the writ, or something equivalent thereto, is absolutely essential as the foundation of the Court's jurisdiction. Where a writ cannot legally be served upon a defendant, the Court can exercise no jurisdiction over him. ..."

At the time Laurie v. Carroll was decided the personal jurisdiction of each State Supreme Court did not extend beyond the boundaries of that State, subject only to the rights given to serve out of the jurisdiction by Rules of Court such as Order XI of the Rules of the Supreme Court in operation before 1986 and by the provisions of the Service and Execution of Process Act 1901. So the Court held there, notwithstanding development of what was or has come to be known as the common law of Australia, that, in questions of jurisdiction each Australian State "is to be treated (subject to the Commonwealth Constitution and legislation such as the Service and Execution of Process Act) as a distinct and separate country or 'law area'": Laurie v. Carroll at 331. Anybody within the jurisdiction was treated as owing allegiance to the Crown and so could be served regardless of subject matter and regardless of their true nationality, domicile or place of residence. Allegiance to the Sovereign in each jurisdiction was deemed to exist by reason of the ligeantia localis or local allegiance which bound not only true subjects of the Sovereign but every alien who came within the jurisdiction for even a fleeting moment, because each such person was treated as owing a temporary allegiance for, but only for, the duration of that person's presence: ibid.

Now, for a number of reasons, the territorial limitations imposed on the jurisdiction of each State within the Commonwealth of Australia must be considered as having little, if any, practical continued application. Although Dawson, J in Kable v. Director of Public Prosecutions (N.S.W.) [1996] HCA 24; (1996) 70 A.L.J.R. 814 at 828, while recognising that the Australian legal system "may be regarded as a whole", nevertheless maintained that "the States are distinct jurisdictions", the majority appeared to take a broader view of that system, for example, McHugh, J saying of the State courts (at 846):

"They are part of an integrated system of State and Federal courts and organs for the exercise of federal judicial power as well as State judicial power."

"There is an integrated Australian legal system, with, at its apex, the exercise by this Court of the judicial power of the Commonwealth."

Howsoever far one ought to take statements of that kind, recent legislative change can fairly be said to have extended the jurisdiction of each State Supreme Court to the boundaries of the Commonwealth, so that, at least for the purposes of the exercise of personal or transitory jurisdiction, there is now a single jurisdictional area. First, by the legislative scheme represented by the Cross-Vesting legislation each State and Territory purported both to grant and to receive the jurisdiction of each other's courts. So by s.4(3) of each Cross-Vesting Act it is provided that the Supreme Courts of each other State and Territory "has and may exercise original and appellate jurisdiction with respect to State matters". Each State having granted concurrent jurisdiction to each other State, then, by s.9 of each State Act, that jurisdiction is accepted in that it provides that each Supreme Court "may exercise jurisdiction ... conferred on that court by a provision of ... a law of ... a State relating to cross-vesting of jurisdiction". It may be thought that what was then given and received was substantive jurisdiction so that it was still necessary for the Court to exercise personal jurisdiction by effecting valid service where necessary on persons outside the jurisdiction but in other States. The power to effect such service was partly granted by the Service and Execution of Process Act 1901 but its limitations were described in Flaherty v. Girgis [1987] HCA 17; (1987) 162 CLR 574. Under the 1901 Act the plaintiff could only rely on service under that Act if the defendant submitted to the jurisdiction of the court out of which the process had issued or if the plaintiff satisfied the court that strict conditions as to subject matter described in s.11 had been fulfilled.

Secondly, by the Service and Execution of Process Act 1992 those requirements have been done away with and there is now general power to serve any person within the Commonwealth of Australia with process issued out of the courts of any State or Territory, as well as the federal courts. The power to effect personal service is now extended without limitation beyond the borders of each State, for all intents and purposes to the territorial boundaries of the Commonwealth: see, as to territories, ss.5 and 7. Thus s.15(1) explicitly provides that: "An initiating process issued in a State may be served in another State". Likewise by s.12 "Service of process under this Act ... has the same effect ... as if the process had been served in the place of issue." Moreover by s.130 "the jurisdiction that a court ... has because of service of process under this Act is not affected by any limitation arising under a law of a State concerning the locality in which the process may be served." There are now no limits such as were provided for in s.11 of the 1901 Act and the only qualifications to the exercise of jurisdiction is contained explicitly and implicitly in s.20. Explicitly, so far as courts other than Supreme Courts are concerned, a defendant may apply to stay the proceeding on the ground that the court of another State "is the appropriate court for the proceeding" upon bases described in sub-s.20(4). There is, however, no such limitation so far as the Supreme Courts are concerned since, by sub-s.(1), s.20 does not apply to Supreme Court proceedings and it is stated in sub-s.(10) that the section does not affect the operation of the Cross-Vesting legislation. Consequently, so far as Supreme Courts are concerned, no stay whatsoever can be obtained by reference to the new Service and Execution of Process Act but the parties are left to their rights under the Cross-Vesting legislation, which for present purposes gives no right to a stay but by s.5(2) entitles the defendant to seek a transfer of the proceeding to a more appropriate jurisdiction, having regard to the principles stated in Bankinvest (supra). See also, s.21.

There can be no doubt that, unlike the 1901 Act, the 1992 Service and Execution of Process Act is inconsistent with the formerly existing scheme under State rules of court for service out of the jurisdiction and within the jurisdiction of the other States and Territories: that is explicitly provided by sub-s.(4) of s.8 of that Act. There is no explicit provision relating to the application of the Voth principle after the passing of the 1992 Act so far as disputes between State and Territory jurisdictions are concerned, but the only reason for preserving the Voth rule is that it enables a stay to be obtained, whereas under the Cross-Vesting legislation the most that can be achieved is transfer to a more appropriate Supreme Court. Although the remedy as between inferior courts is the same, namely a stay pursuant to s.20 of the 1992 Act, in the Supreme Courts the defendant has the very considerable advantage of not having to establish that the court out of which process was issued was a clearly inappropriate forum and it need only be shown on a balance of convenience that it is in the interests of justice or more appropriate to have the proceeding transferred.

Subject always to the power of the court to stay frivolous, vexatious or oppressive proceedings or any which amount to an abuse of process (the categories of which can never be closed), the Voth principle should be considered as having no continued practical application so far as the exercise of jurisdiction as between the several State Supreme Courts. So the ordinary remedy of parties, who are served in Australia with process issued out of the Supreme Courts of States or Territories other than that in which they reside and who wish to complain that the Supreme Court of that other State or Territory is not the appropriate forum in which the litigation should be heard, is to seek transfer pursuant to the provisions of s.5(2) of one of the State Cross-Vesting Acts. In the light of the complex and sophisticated scheme now in operation in this country, a stay of the kind contemplated by Voth must be seen as an inappropriately heavy-handed means of ensuring that issues are determined in the proper forum, i.e. in the court within Australia most appropriate to hear the action and most convenient to the parties for that purpose. Transfer under the Cross-Vesting legislation should been seen as now providing the necessary and appropriate weapon to achieve the same end by transferring litigation to a more appropriate jurisdiction within Australia. Not only is a transfer a fairer means of protecting a defendant sued in the "wrong" court, one saving both parties much unnecessary expenditure, but it also provides a remedy based, so far as a defendant is concerned, on a less demanding test and one which is designed to ensure that litigation is heard in the most convenient and appropriate court, unaffected by the reasons which impelled the High Court to impose the strict test in Voth when issues are raised as to whether a local court "should allow a foreign forum rather than itself to determine a question ...": cf. Z.P. v. P.S. [1994] HCA 29; (1994) 181 CLR 639 at 649 per Mason, CJ and Toohey and McHugh, JJ (in a dissenting judgment).

This conclusion might be seen to have been recently confirmed by a decision of the South Australian Full Court which was not cited in argument but which can be seen as reaching effectively the same conclusion. In Pegasus Leasing Ltd. v. Balescope Pty. Ltd. (1994) 63 S.A.S.R. 51 Perry, J (with whose reasons Bollen and Prior, JJ agreed) said (at 56) that "the decision in Voth ... is of application only to situations where the competing courts are a court within Australia and a court outside of Australia". It seems that for this purpose the Court relied on the dictum of the minority in Z.P. v. P.S. referred to above but I am not entirely confident that the dictum was intended to have such a wide application, bearing in mind that that litigation was being conducted in the Family Court. However the Full Court appeared to accept that an application for stay on grounds of forum non conveniens could still be made, the court then devising a test akin to that applied under the Cross-Vesting legislation but moulded from dicta in Cope Allman (Aust.) Ltd. v. Celermajer (1968) 11 F.L.R. 488. The Full Court, however, also observed (at p.58) that an application for a stay "should not be permitted as an indirect means of appealing against a refusal to make an order under the Cross-Vesting legislation". Cf. also Technilock (Aust.) Pty. Ltd. v. Mondami Pty. Ltd. (Supreme Court of South Australia, Debelle, J, 15 January 1997, unreported) at p.1.

I would prefer, however, the formulation of Underwood, J in another case not cited to the Court, McEntee v. Connor [1994] TASSC 47; (1994) 4 Tas.R. 18 at 24:

"With respect to causes of action that arise wholly within Australia, it seems to me that in a practical sense, the Cross-Vesting legislation has ousted the operation of the common law. In such cases it is difficult to conceive of a situation where an Australian forum will be clearly inappropriate, and the choice of that forum will be governed by the principles governing the exercise of the statutory discretion conferred by the Cross-Vesting legislation."

Reference was properly made in McEntee (at pp.20-21) to the effects of the passing of the Service and Execution of Process Act 1992. In relation to Supreme Courts I would agree and consider it of great significance that the power to order a stay if another court is the appropriate court to determine the proceeding, which is explicitly granted by s.20 to inferior courts, is explicitly (by sub-s.(1)) made not applicable to proceedings issued out of Supreme Courts and that sub-s.(10) preserves the operation and effect of the Cross-Vesting legislation. However, one must concede that the provisions of s.20 can only point to what is an appropriate conclusion because not every proceeding in which the issue of appropriateness may arise will necessarily have been served pursuant to the Service and Execution of Process Act. The Voth principle was and is applicable where persons were served within the jurisdiction and so was not confined to cases where there was a statutory extension of personal jurisdiction. Nevertheless the Cross-Vesting Act is of general application and the procedure for transfer should be seen as making the Voth principle redundant for disputes within Australia, save in the most exceptional of circumstances where the prevention of an abuse of process is the predominant consideration: cf. Nygh: Choice of Law Rules and Forum Shopping in Australia (1995) 6 Pub.L.Rev. 237 at 239-240.

Why this conclusion is important in the present case is that the learned judge sought to justify refusal of the remedy under r.32.05 by reference to the fact that the proposed action would be stayed, or at least that is implicit in the judge's elliptical reasoning set out above. However, if the proper remedy, in the case of a contention that another Supreme Court is more appropriate, is mere transfer, there is no reason to refuse relief at this stage, as when and if the action is brought it can, if necessary and upon a consideration of all relevant materials, be transferred to the Supreme Court of New South Wales, and the defendants will be able to obtain a transfer upon satisfaction of a far less stringent test than is required by Voth. In failing to take into account the provisions of the Cross-Vesting legislation and the Service and Execution of Process Act 1992 the learned judge applied an incorrect test for the purpose of determining whether preliminary discovery should be granted.

Moreover the question in each case is whether there is reasonable cause to believe that relief may be obtained "in the Court". The answer to that question in this case must be in the affirmative but there will remain the question whether paragraphs (b) and (c) have been satisfied. The defendants are able to be sued by writ filed in the Supreme Court of Victoria and served in the Court's extended jurisdiction by virtue of the Service and Execution of Process Act. There is no bar to relief in the Court, subject only to an application for transfer under the Cross-Vesting legislation, but the proceeding itself is transferred and so there is no question of its being stayed. Thus, as the proceeding, so far as it is presently understood and on the evidence presently available, should not and will not be stayed under the Voth principle, relief can be obtained in this Court by a writ filed in this Court. For this purpose the possibility that it will be ultimately determined in the Supreme Court of New South Wales by virtue of a transfer order does not deny reasonable cause to believe the appellant may have the right to obtain relief in this Court; it will merely change the venue for its hearing, subject to the operation of all relevant provisions of the Cross-Vesting Act.

It was therefore wrong to refuse an order by reference to the clearly inappropriate forum test. One may concede that, if an application were to be made to transfer the proposed proceeding, when commenced, to New South Wales, then, on the known facts, a not inconsiderable case might well be made out under the s.5(2) tests inasmuch as the only known nexus with this State would be the residence of the plaintiff in Victoria, though, as suggested, the success of such an application cannot presently be forecast with certainty. But that misconceives the relevant issue on the hearing of the present application. Only if the proposed action could be seen as an abuse of process, i.e. of a kind where there was no connection with this State, or of a kind which raises title to foreign land, or which otherwise might be characterised as forum shopping, would the Court be obliged to stay the proposed action and, upon that premise, there would be grounds to refuse an application pursuant to r.32.05 because relief could not then be obtained "in the Court". On the other hand, if the proposed action was not of a kind which should be stayed, there is clearly jurisdiction to hear the proceeding if the respondents are properly served whether in this State or in New South Wales pursuant to the Service and Execution of Process Act 1992. Assuming the facts remain the same as been outlined above, this Court would have jurisdiction to hear the appellant's claims but the respondent would have a right to seek transfer under the Cross-Vesting Act. The latter decision would depend upon questions not of jurisdiction but upon the exercise of a discretion, or perhaps more precisely upon the court's satisfaction as to facts which would involve a value judgment, and, if the respondents were successful, that proceeding would not come to an end but be merely transferred to another court, the New South Wales Supreme Court, for hearing and determination. Unless there be exceptional circumstances, this Court, on hearing an application under r.32.05, would be unwise to make a forecast as to the future exercise of the "discretion" under s.5(2) of the Cross-Vesting Act, so it should ordinarily not, by refusing preliminary discovery, prevent or frustrate an applicant from issuing its proposed proceeding later in whatever is perceived to be an appropriate forum having regard to all the facts then known.

In short, therefore, such facts as might be seen as likely, in due course, to justify a transfer of the proposed proceeding do not deny the right of a plaintiff to invoke this Court's jurisdiction on the present application, at least in the first place. In effect, for present purposes, each Supreme Court has Australia-wide jurisdiction. It would be only if the case for transfer of the proposed proceeding were so transparently clear, such that the plaintiff's action must, on any view of the possible facts likely to be discovered, be certainly transferred under the Cross-Vesting legislation, that the plaintiff's application should be refused. However, none of these considerations were taken into account by the judge and her discretion has clearly miscarried. So far as this Court is concerned the appellant has to show only that she "may have" the right to obtain relief in this Court, i.e. that her future action is not certain to be transferred under the Cross-Vesting legislation, whatever information and circumstances may be later forthcoming so as to lead to transfer when the action has been commenced. I should emphasise, lest it be thought strange that this Court should make an order for preliminary discovery when it seems not unlikely that the proposed action will be transferred, that it was open to the respondents to apply under the Cross-Vesting Act for the transfer of this application itself: but that, it should be repeated, is not what the respondents chose to do, so the judge was, in consequence, not required to consider an application of that kind.

It remains to determine whether relief should otherwise have been granted. I see no reason why it should not. The decision did not and does not depend upon the credibility of witnesses and this Court is in just as good a position to reach conclusions.

Whether paragraph (a) of the rule is satisfied depends upon an analysis of the facts. At this stage, of course, it is not necessary to show precisely what cause of action the appellant may have. As stated above, that would make this application otiose. She need only demonstrate facts from which it may reasonably be believed that she "may have" one or more causes of action against the respondents. The right to relief was said, at least on this appeal, to arise from the following actual or inferred facts:

(a) The appellant and the first respondent are or were entitled in equal shares to the estate property of their deceased father;

(b) That estate property consists or consisted of approximately 38 lots of land in the South Korean province of Chungcheong Namdo;

(c) The first respondent owed and owes a fiduciary duty (or some equivalent obligation in South Korean law) to the appellant to account to her and prima facie to give her half of the proceeds of sale or of any other disposition of any of the estate property; or alternatively he holds such proceeds, as to half, on trust for the appellant.

(d) The estate property, i.e. the land, increased in value considerably by the early 1980's;

(e) There have been several alienations of the estate property contrary to the appellant's interests at times when custodians appointed by or with the acquiescence of the first respondent have been in control of that property; [It is not clear whether the appellant relied and relies upon the disposition purportedly made by Kil Sub Won in 1974 but which upon any account appears to have been fraudulently executed by whosoever had effective control of the property at that time];

(f) In about December 1994 the first respondent and the property custodian misled the appellant into taking no action to recover seven lots of the estate land until it was, apparently, too late to challenge the transfer resulting from the apparent gift in 1980;

(g) The first respondent, who was a boiler-maker by trade, has in recent years acquired a number of valuable assets, now held by the respondents.

There is much, of course, which is not known at present. It may be conceded that the facts outlined at the beginning of this judgment and summarised above could not in themselves provide a basis for a properly pleaded statement of claim against the respondents. But the question is always whether it is reasonable to believe that the appellant may have a right to relief against them. Not only do the above facts show that the first respondent may well have had the opportunity to misapply the father's property at some time in the past or was in a position to influence the custodian trustee from time to time, but there are circumstances from which it is not difficult to infer that the respondents have acquired large sums of money from a source they are unwilling to disclose. I am not at present suggesting that there must be a connection, for that would usurp the function of any trial court, but there is sufficient on the evidentiary material to justify a conclusion that the appellant may have the right to obtain relief in this Court. That is the more so because of the way in which the respondents answered the allegations in the affidavits. It is not as if they did not condescend to detail as to a large number of events. That they clearly did but when it came to an explanation for their new-found wealth they merely sought refuge in stating that they were not obliged to inform either the appellant or the court. Apart from the general assertion that they had worked hard and that money was borrowed, nothing more is known of the source of funds for the nursing home, luxury cars and jewellery and it is not so much the borrowing, but the securing and satisfying of the debt and the payment of interest thereon which might have been here explained. This is again an appropriate case for the application of the principles stated in O'Donnell v. Reichard [1975] VicRp 89; [1975] VR 916 at 929 and Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298. Thus I would conclude that there are reasonable grounds for believing that the appellant may have a right to obtain relief in this Court.

It is also necessary to show that paragraphs (b) and (c) have been satisfied. Under paragraph (b) it is necessary to show that all reasonable enquiries have been made and that after those the appellant has not sufficient information to decide whether to commence proceedings. The learned judge correctly found that there had been reasonable enquiries, or so it may be inferred, and I see no reason to reach any different conclusion. Indeed the whole history of the matter shows attempts to obtain information from various people including the first respondent which had, in some cases, taken many years to obtain and which is essentially difficult to obtain because it has required a number of journeys to South Korea. The events, especially in the last six months before the filing of the application, show that the appellant did make reasonable enquiries but that she still has not yet sufficient information to bring the claims which she believes may be able to be pursued against the respondents. Finally, in all the circumstances, paragraph (c) is satisfied in that there ought and so are likely to be documents in the hands of the respondents relating to the appellant's right to obtain relief, inspection of which would assist her to make the necessary decision.

Having been satisfied as to each of the requirements contained in paragraphs (a), (b) and (c) of r.32.05, it remains for me to express my conclusion as to how this Court ought to exercise the discretion in this case. Delay was rightly rejected by the learned judge. No doubt there are a large number of other factors which may be taken into account for this purpose but on the present appeal the respondents' arguments were primarily directed to showing that it was not appropriate that the proposed litigation should be commenced or heard in this Court. As stated earlier, I have already dealt with that in detail and it remains only to say that, where all parties are within the Commonwealth of Australia and thus can be served pursuant to the Service and Execution of Process Act 1992, the facts that the land is in South Korea and the respondents' assets are in New South Wales are not sufficient to persuade me that the discretion should not be exercised. For reasons which I have stated the appellant, when and if she commences the proposed action in this Court for relief in personam against the respondents, will have regularly invoked the jurisdiction of this Court, for even in Voth's Case it was said that "a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise": at p.554. To the extent that it now be relevant, I do not consider that there is any abuse of process in seeking preliminary discovery of these documents for the purpose of determining whether or not to bring such an action. This application has already been heard and resolved without any exceptional inconvenience, the matter being argued upon the affidavits, and the provision of documentary discovery within the confines of the Commonwealth of Australia ought not these days to pose insuperable difficulties. Nor have these matters been relied upon by the respondents. The proper ascertainment of the nature and scope of the proposed proceedings can only be satisfactorily done after they have been formulated and, though at present it might seem more likely than not that any proceeding issued out of this Court will be transferred to the Supreme Court of New South Wales, that fact does not, for the reasons stated, deny the appellant may have the right to obtain relief in this Court. The fact that it may be transferred ought not in the circumstances to lead to the conclusion that the present application ought not to be granted in the Court's discretion. It would serve no real practical purpose to refuse relief in order to require a similar application be brought in New South Wales. Indeed no application for transfer under the Cross-Vesting Act has been made.

Accordingly I consider that orders should be made by this Court for pre-action discovery pursuant to r.32.05.

It remains only to consider the form of orders. The notice of appeal set out a proposed order consisting of some six paragraphs. Naturally any such order should condescend to particularity as far as practicable and for the purposes of obtaining discovery under other rules strictness of identification of the relevant documents is frequently insisted upon. In the present case, however, the rule is predicated upon insufficiency of information to enable the applicant to decide whether or not to commence proceedings and so there can be no unreasonable insistence upon strictness of description in those circumstances. The kinds of documents in respect to which discovery should, I consider, be given follow broadly the claim made by the appellant subject to some amendments made as a result of argument. I am of opinion therefore that the Court should order pursuant to r.32.05 the respondents make discovery to the appellant of the following documents in the possession, custody or power of the respondents or any of them:

(a) All documents relating to dealings in the estate of Kil Sub Won from 1979 until the present;

(b) All documents relating to any funds in excess of $25,000 transferred from 1979 to the date of this order by any person or persons in South Korea directly or indirectly to the respondents or any of them;

(c) All documents relating to the acquisition and financing of the acquisition of the nursing home known as Windermere Nursing Home and situated at 5 Henson Street, Summerhill, New South Wales ("the nursing home");

(d) All documents relating to the acquisition and the financing of the acquisition of all other assets in excess of a value of $25,000 acquired by the respondents or any of them since 1979;

(e) All documents relating to the financing of any extension and renovations to the nursing home;

(f) All documents relating to court proceedings in the Republic of South Korea concerning the estate of Kil Sub Won or any dealings therein.

I would therefore conclude that the application for leave to appeal should be granted and the appeal allowed. The orders of the learned judge should be set aside and in lieu thereof there should be orders for discovery pursuant to r.32.05 in the form set out in the preceding paragraph. Subject to any submissions by counsel, the appellant should have the costs of the appeal and there should be the customary orders for costs and expenses in favour of the respondents on an application of this kind and in respect of their making discovery and obtaining inspection pursuant to this order, in accordance with r.32.11(1). As there seems no reason why, upon the conclusion of a successful action against the respondents, the costs of the present application should not be ordered in favour of the appellant including any costs she incurs on her own behalf and any she is obliged to pay pursuant to this order, there should now be an order on the application that the plaintiff pay the defendants' costs, including reserved costs.

I have had the advantage of reading in draft the reasons for judgment of Ormiston, J.A. I agree with the orders proposed by his Honour and for the reasons given by him.

I have had the benefit of reading in draft the reasons for judgment of Ormiston, J.A. I agree with his Honour's reasons and conclusions and with the orders he proposes.