Cross-vesting - Application to transfer to Supreme Court of Western Australia refused - Interests of justice - Application of the common law of stay of proceedings ousted by the operation of the cross-vesting legislation with respect to causes of action that arise in Australia. Bankinvest AG v Seabrook (1988) 14 NSWLR 711; Drive-In Nominees Pty Ltd and Ors v Farrow Mortgage Services Pty Ltd A19/1993, applied.

Solicitors for Applicant/Defendant: Piggott Wood and Baker

Solicitors for Respondent/Plaintiff: Marstrand and Ayling

UNDERWOOD J In 1984, the parties to these proceedings were students at the University of Tasmania. About a year later they moved to Perth and started living together in what these days, is known as "a relationship". In 1989 they jointly bought a house in Western Australia but in the following year decided to go to Japan and look for work in that country. Both were successful in getting work, first in Tokyo and later in Nagowya.

2. According to the plaintiff, there was an altercation between the parties in Nagowya on 23 June 1991. What followed immediately thereafter does not appear from the evidence, but at all events, by 8 March 1993 the parties were no longer living together. By then the plaintiff, who was born in Tasmania and had lived here until she left for Western Australia in 1985, was back in this State and the defendant was living in Western Australia. The plaintiff is presently studying at the University of Tasmania for a Doctorate of Philosophy.

3. On 8 March 1993, the plaintiff issued a writ out of this Court and served it on the defendant in Western Australia. The writ claims damages for assault. The statement of claim reads in part:

"On or about the 23rd of June 1991 at Nagowya, Japan the

defendant wrongfully and intentionally assaulted and injured

the plaintiff by:

(a) striking her in the face about the left eye with his

fist:

(b) pushing her against a wall: and

(c) pulling her by the hair on her head.

By reason of the matters aforesaid the plaintiff sustained

personal injuries and has suffered loss and damage."

4. The defendant brought this application for an order either that the proceedings be stayed or transferred to the Supreme Court of Western Australia. Initially, the defendant entered a conditional appearance to the writ but deliberately did not proceed with an application to set aside service of the writ. In result, Rules of Court, O13, r24(3) operated to convert the conditional appearance into an unconditional appearance and the defendant thereby submitted to the jurisdiction of this Court. This submission was entirely proper.

5. In Laurie v Carroll [1958] HCA 4; (1957-1958) 98 CLR 310, the court held that jurisdiction over an action in personam depended upon the plaintiff being able to legally serve the writ upon the defendant. In their joint judgment, Dixon CJ, Williams and Webb JJ at 323 approved the following passage in Dicey, Conflict of Laws, 6 edn (1949) 172:

"The service of a 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.

In an action in personam the converse of this statement

holds good, and wherever a defendant can be legally served

with a writ, there the court, on service being effected has

jurisdiction to entertain an action against him. Hence, in

an action in personam, the rules as to the legal service of

a writ define the limits of the court's jurisdiction."

6. A claim for damages for assault is an action in personam. The Service and Execution of Process Act (Cth) 1992, ss15(1) and 16 provide respectively:

"15(1) An initiating process issued in a State may be served

in another State.

16 Service is effective only if copies of such notices as

are prescribed are attached to the process, or the copy of

the process, served."

7. Accordingly, by reason of those provisions of the Service and Execution of Process Act 1992, service of the writ upon the defendant was lawful and this Court has jurisdiction to determine this action. Of this Act, s15, Master Hogan wrote in Kontis v Barlin (1993) 115 ACTR 11 at 18:

"By s15(1) of that Act, an initiating process issued in this

Court may be served anywhere in Australia. There is no

requirement for prior leave. There is no requirement in

order to effect service that there be any connection between

the cause of action and the Australian Capital Territory.

There is no requirement for leave to proceed if an

appearance is not entered. There is not even a requirement

for any particular endorsement on the originating process.

All that will be required, pursuant to s16, is that the

copies of the notices that are to be prescribed are to be

attached to the copy of the process served."

8. Master Hogan went on at 19 to set out a passage from the second reading speech of Senator Bolkus on the introduction of the Bill:

"No endorsement will be needed on process commencing a

proceeding against a person in another State. Solicitors

will be able to use the one document for service anywhere in

Australia, supplemented by an information notice as

prescribed when service is interstate. Also abolished by

the Bill is the need for a particular connection between the

cause of action and the State in which proceedings are

commenced. Instead, the Bill provides for a stay of

proceedings in an inferior court where there is a more

appropriate forum to determine the matters in dispute

between the parties. Combined with the cross-vesting

legislation which provides, amongst other things, for

transfer of proceedings between the Supreme Courts, this

will enable cases to be determined in the most convenient

forum."

9. The Service and Execution of Process Act 1992, s20 gives a court power to stay proceedings if it is satisfied that a court in another State has jurisdiction and that court "is the appropriate court to determine those matters." However, s20(1) provides that s20 does not apply to proceedings in a Supreme Court. Inferentially, Parliament no doubt intended the cross-vesting legislation to govern the transfer of proceedings between the Supreme Courts of Australia. However, there is no express provision in either the Service and Execution of Process Act or the cross-vesting legislation to oust the common law principles governing a stay of proceedings on the basis of forum non conveniens.

10. The defendant accepts all of the foregoing but submits that an application of the common law principles governing a stay of proceedings requires the making of an order that these proceedings be stayed or, pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987, s5(2)(iii) it is "in the interest of justice" that the proceedings be transferred to the Supreme Court of Western Australia. The defendant carries an onus on an application based on the common law. No such onus attaches to an application under the cross-vesting legislation. See Bankinvest AG v Seabrook (1988) 14 NSWLR 711; Anagnostis and Anor v Davies Brothers Ltd (1989) 99 FLR 196 and another judgment of mine, Drive-In Nominees Pty Ltd and Ors v Farrow Mortgage Services Pty Ltd A19/1993.

11. Turning first to the common law. The nature and extent of this onus was examined in the United Kingdom in Spiliada Maritime Corporation v Cansulex Ltd (1987) 1 AC 460 where it was held that an applicant had to establish that another available forum was clearly more appropriate than the United Kingdom forum "ie (one) in which the case may be tried more suitably for the interests of all the parties and the ends of justice" (476). At 478 Lord Goff of Chieveley adopted an expression of Lord Keith of Kinkel in The Abidin Daver (1984) AC 398 at 415 of "the natural forum," described as being "that with which the action had the most real and substantial connection". The nature and extent of this onus was considered in Australia the following year in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197. In that case, the majority of the High Court did not follow the House of Lords in Spiliada. In the opening words of his judgment at 241 Deane J said:

"A party who has regularly invoked the jurisdiction of a

competent court has a prima facie right to insist upon its

exercise and to have his claim heard and determined."

12. The majority held that a stay may be granted if the local forum was clearly an inappropriate forum, but the mere fact that some foreign tribunal was more appropriate within the Spiliada concept would not justify a stay of proceedings.

13. In Voth v Manildra Flour Mills Proprietary Limited and Anor [1990] HCA 55; (1990) 171 CLR 538 the High Court reconsidered its decision in Oceanic Sun. In the course of a discussion between what was described as the "clearly inappropriate forum" test (Oceanic Sun) and "clearly more appropriate forum" test (Spiliada) the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ contains this passage at 557:

"From an abstract (an international) standpoint there is

much to be said for the 'more appropriate forum' test. It

is designed to ensure that the cause of action is litigated

in the natural or more appropriate available forum and

litigation in that forum will generally reflect the balance

of convenience between the parties. The justification for

the selected forum declining to exercise its jurisdiction is

that it defers to the exercise of jurisdiction by another

available and more appropriate forum."

14. Despite that favourable comment the High Court declined to wholeheartedly embrace Spiliada. At 558 the joint judgment pointed out that the two tests were likely to yield the same result in the majority of cases: "The difference between the two tests will be of critical significance only in those cases - probably rare - in which it is held that an available foreign tribunal is the natural and more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one." At 564 the joint judgment expressly approved the principles set out by Deane J in Oceanic Sun at 247-248 but added, that in the application of those principles the "connecting factors" and "the legitimate personal or juridical advantage" referred to in Spiliada at 477-478 were of valuable assistance. Although lengthy, the passage in Deane J's judgment expressly adopted in the joint judgment in Voth is worth setting out in full:

"In the light of the foregoing and at the cost of some

repetition, it is possible to identify in summary form what

I see as the modern content of the traditional principles

governing the power of a court in this country to order that

proceedings which have been regularly instituted within

jurisdiction should be dismissed or stayed on inappropriate

forum grounds. That power is a discretionary one in the

sense that its exercise involves a subjective balancing

process in which the relevant factors will vary and in which

both the question of the comparative weight to be given to

particular factors in the circumstances of a particular case

and the decision whether the power should be exercised are

matters for individual judgment and, to a significant

extent, matters of impression. The power should only be

exercised in a clear case and the onus lies upon the

defendant to satisfy the local court in which the particular

proceedings have been instituted that it is so inappropriate

a forum for their determination that their continuation

would be oppressive and vexatious to him. Ordinarily, a

defendant will be unable to discharge that onus unless he

can 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. Otherwise, that onus will ordinarily be

discharged by a defendant who applies promptly for a stay or

dismissal if he persuades the local court that, having

regard to the circumstances of the particular case and the

availability of the foreign tribunal, it is a clearly

inappropriate forum for the determination of the dispute

between the parties. The reason why that is so is that,

once it is accepted that the adjectives 'oppressive' and

'vexatious' are not to be narrowly or rigidly construed and

are to be applied in relation to the effect of the

continuation of the proceedings rather than the conduct of

the plaintiff in continuing them, the continuation of

proceedings in a tribunal which is a clearly inappropriate

forum would, in the absence of exceptional circumstances

being established by the plaintiff (cf Spiliada Maritime

Corp v Cansulex Ltd (1987) 1 AC 460, at p478), be oppressive

or vexatious to such a defendant if there is some available

and appropriate tribunal in another country. Admittedly,

that approach to the 'vexatious' and 'oppressive' test is

less stringent and less rigid than would have been accepted

in the nineteenth century. Under it, the applicable test

pursuant to traditional principles can, in the ordinary

case, properly be seen as an 'inappropriate forum' test. It

cannot, however, properly be seen as a 'more appropriate

forum' test since the mere fact that a tribunal in some

other country would be a more appropriate forum for the

particular proceeding does not necessarily mean that the

local court is a clearly inappropriate one."

15. What of the application of those principles to the present matter?

16. 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. Under the legislation, transfer to another Supreme Court will depend upon it being in the interests of justice to transfer. The exercise of that discretion leaves no room for the principles set out in Voth's case. In that sense, Senator Bolkus was right to say with respect to the Service and Execution of Process Act 1992:

"Combined with the cross vesting legislation which provides,

amongst other things, for transfer of proceedings between

Supreme Courts, this (the Service and Execution of Process

Act) will enable cases to be determined in the most

convenient forum."

17. In the present case there is little to choose between this Court and the Supreme Court of Western Australia. The plaintiff lives here and the defendant lives in Western Australia. The only material I have indicates that, by a slight margin, the interests of justice favour rejection of the application to transfer. The plaintiff deposed that, at the trial, she will call evidence from two medical practitioners both of whom live in Tasmania. In support of the application for transfer to Western Australia, the defendant's solicitor drew attention to the provisions of the Criminal Code (WA), s246 which relevantly provides:

"A person is not criminally responsible for an assault

committed upon a person who gives him provocation for the

assault, if he is in fact deprived by the provocation of the

power of self control, and acts upon it on the sudden and

before there is time for his passion to cool; provided that

the force used is not disproportionate to the provocation,

and is not intended, and is not such as is likely to cause

death or grievous bodily harm."

18. The same Code, s5 provides that where the Code declares any act to be lawful, "no action can be brought in respect thereof".

19. In his affidavit, the defendant's solicitor deposes that these provisions "may provide the defendant with a defence at law to the plaintiff's action". See Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas), s11(1). However, leaving to one side any question of statutory interpretation, there is no factual material before me to suggest that provocation has any relevance in these proceedings at all.

20. Accordingly, I reject the application to transfer the proceedings to the Supreme Court of Western Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas), s5(2)(iii).

21. This leaves the question of whether there should be a stay of proceedings in this Court on the basis that their continuation here would be oppressive and vexatious to the defendant in the sense expounded by Deane J (supra) and that, the circumstances of the case are such that a non-Australian forum to which the defendant is amenable is available to entertain these proceedings. With respect to the last point, the material before me is scanty to say the least. It comprises a single paragraph in the solicitor's affidavit, "I am instructed by the defendant and verily believe that this matter could be dealt with through the court system in Japan". Even assuming that there is a court in Japan which is available to entertain these proceedings, there is nothing before me to establish that the defendant would be amenable to the jurisdiction of such a court.

22. In any event, apart from some provisions of the Japanese civil code which "may provide the defendant with a limited defence at law" and the fact that the alleged tort was committed in Japan, there are no or no sufficient connecting factors to satisfy the principles expressed by Deane J in Voth. Neither of the parties now reside in Japan or have any connection with that country. There are no witnesses who reside in that country. To require the parties and the witnesses to travel to Japan and there conduct their proceedings, at least in part, through interpreters would be exceedingly expensive and cumbersome. Whether the defendant would have a limited defence if these proceedings were conducted in Japan would depend upon the facts and there is no evidence before me of any of the material facts relating to the plaintiff's claim.

23. Accordingly, the defendant fails in the application for a stay of proceedings. The application will be dismissed.