18 If the McKelvey approach is adopted, then the judge of a Superior Court means a person who in the place where the property is located has firstly, the authority to make an order for possession (and ancillary orders); and secondly, has exercised that function of judge or magistrate as the case may be. In 1995 these powers were exercised by the District Court Judge who had the power and authority to make such an order for possession of property. In 1998 these powers were exercised by the President of the Rent Control Court of Limassol who likewise had the power and authority to make orders for possession of property. It is my view that both of these judgments are judgments of a superior court in a part of Her Majesty's dominions to which the Act applies.
Just and convenient
19 I turn to consider whether it is in all the circumstances just and convenient. While Oceanic Sunline Special Shipping Co Inc v Fay (1988) 165 CLR 197 determines the principle to be applied when determining whether a stay of proceedings or a dismissal of proceedings should be granted, the principle is equally applicable to the registration of foreign judgments. In Oceanic the facts were that the respondent, a resident of Queensland, sued the appellant in the Supreme Court of New South Wales for negligence in respect of personal injuries sustained whilst he was a passenger on a tourist ship in Greek waters. The appellant was a company incorporated in Greece and was the owner and operator of the ship, which was registered in Greece. Its port of both departure and destination was also in Greece. The respondent initially sued the appellant in New York where the action had been stayed on the ground of forum non conveniens. The respondent then obtained leave from the Supreme Court of New South Wales to serve his writ outside the jurisdiction on the basis that he had suffered injury within New South Wales, as the contract of carriage was entered into in that State. The majority held that the primary judge's refusal to grant a stay and dismiss the action on the ground of forum non conveniens should stand.
20 At 247-248 Deane J stated:
"…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 which both the questions of the comparative weight to be given to the 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 a 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 clearly an inappropriate forum for the determination of the dispute between the parties.…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 the "inappropriate forum" test. It cannot, however, properly be seen as the "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 clearly an inappropriate one."