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[1908] HCA 37
High Court of Australia
1908-06-19
Higgins JJ
Original judgment source is linked above.
The application in this case is founded, substantially, upon the contention that, although the defendants are a company registered in Victoria, and liable to be sued there, they ought not under the circumstances of the case to be sued in Victoria, because it would be inflicting an injustice upon them to put them to the expense of defending the action there. The general principles to be applied in such a case are laid down in the authorities cited to us. I will read one or two passages from the judgment of the President, Sir Gorell Barnes, in which the other members of the Court of Appeal concurred, in Logan v. Bank of Scotland (No. 2)[1]. He said: - "The Court should, on the one hand, see clearly that in stopping an action it does not do injustice, and, on the other hand, I think the Court ought to interfere whenever there is such vexation and oppression that the defendant who objects to the exercise of the jurisdiction would be subjected to such injustice" (I interpolate there the words supplied by Warrington J. in Egbert v. Short[2],) "in defending the action that he ought not to be sued in the Court in which the action is brought, to which injustice he would not be subjected if the action were brought in another accessible and competent Court"; and again[3]: - "Yet it seems to me clear that the inconvenience of trying a case in a particular tribunal may be such as practically to work a serious injustice upon a defendant and be vexatious. This would probably not be so if the difference of trying in one country rather than in another were merely measured by some extra expense ... If, for instance, as was put in argument a dispute of a complicated character had arisen between two foreigners in a foreign country, and one of them were made defendant in an action in this country by serving him with a writ while he happened to be here for a few days' visit, I apprehend that, although there would be jurisdiction in the Court to entertain the suit, it would have little hesitation in treating the action as vexatious and staying it." After giving another instance, he said[]: - "If that were not held, I see no reason why any one abroad might not sue and be allowed to proceed, against a bank which had a branch in this country, in respect of transactions all of which had taken place in another country where the head office of the bank was - e.g., Australia or Brazil - and where the inconvenience of trying the case in this country would be so enormous as practically to work the most serious injustice upon the defendant. This matter is, in this respect, of general importance, because so many banks and other mercantile houses which are established in our Colonies and in the United States and other foreign countries have branches here. To a business concern to allow actions to proceed in such circumstances when there is a proper and adequate tribunal in the place where both parties really are, and dealt with each other, and all the evidence is, would be intolerable." I think that puts the argument as high as it can be put for the appellants.
We are told that the representative of the appellants in Victoria knows nothing about the matter; that the transaction took place, that the contract was made and was to be performed, in Cape Colony; and therefore that it would be an injustice to compel the appellants to defend the action in Victoria. To that they add that all their witnesses are in South Africa. Primâ facie, upon those facts there is a case to be answered. But, as Warrington J. pointed out in Egbert v. Short[5], having conceded so much - that there would, primâ facie, be an injustice to the appellants - it remains to be considered whether granting the application would not work at least as great an injustice to the respondents. Let us consider the case from that point of view. In the first place, the respondents are a Victorian local authority. They desired to bring a vessel from South Africa to Victoria. They insured the vessel for the voyage, and insured it with a company carrying on business in Victoria and amenable to the jurisdiction of the Courts of Victoria. I do not think it is a far-fetched idea that a person insuring a ship takes into consideration the fact that the company with which he insures has a domicil in a particular country where he will be able to sue them in the event of a dispute arising. That is one element of the case. Another element is this. The main argument of the appellants was founded upon the idea that if the action were brought in South Africa it could be tried on oral evidence. It was suggested upon the motion to àBeckett J. that the trial should take place in Natal, where a great number of the witnesses who can give evidence as to the seaworthiness of the vessel when she sailed are resident. But it appears now, upon the evidence before us, that an action could not be brought there. The appellants do not carry on business there, the contract was not made there or to be performed there, and the respondents are not represented there. Really, when the argument is reduced to naked bedrock, that contention is founded upon the notion that the action ought to be brought where the defendants' witnesses are. That proposition cannot be supported for a moment. It appears, on the other hand, that some of the witnesses for the respondents are in Victoria. If the action goes to trial here, the respondents will have the advantage of having those witnesses examined vivâ voce. If the action is not tried in Natal, then it is suggested that it ought to be tried in Cape Colony for two reasons: one, that the contract was made there and was to be performed there, the other, that the appellants have an agency there. If it were tried there, all the evidence on both sides would have to be taken by commission, since the witnesses are either in Natal or Victoria; and we have no right to assume that the witnesses will be taken to Cape Town or will go there voluntarily. It is said that a commission to England may also be necessary. So that, whether the action is tried in Victoria or in Cape Colony, there will have to be commissions; if it is tried in Cape Colony practically all the evidence will have to be taken on commission; and if it is tried in Victoria, some of it will have to be so taken. Under these circumstances can it be said that injustice will not be done to the respondents by staying this action and compelling them to go somewhere else, quite as great as that done to the appellants by allowing the respondents to proceed with the action? The respondents are doing no more than seeking to assert a legal right, and it seems to me impossible to say that they should be driven to some other tribunal. It might as well be said that they should be driven to England; for, if the action may not be brought where the respondents are, why should they not be compelled to bring it where the head office of the appellants is situated? For these reasons I think the judgment appealed from is right.
Appeal dismissed with costs, including costs of motion for leave to appeal.
Solicitors, for the respondents, Moule, Hamilton & Kiddle.
[1] (1906) 1 K.B., 141, at p. 150.
[3] (1906) 1 K.B., 141, at p. 151.
[4] (1906) 1 K.B., 141, at p. 152.
Maritime Insurance Co Ltd
Geelong Harbor Trust Commissioners [1908] HCA 37;
(1908) 6 CLR 194