Should the court exercise its jurisdiction in the present case?
29 The leading case in Australia concerning the considerations relevant to the exercise of this Court's discretion is Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
30 In Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197, a resident of Queensland sued in New South Wales for injury sustained on a ship in Greek waters. The ship owner was incorporated in Greece and the ship was registered in Greece. The ports of departure and destination for the journey were in Greece. Notwithstanding these factors, it was held that the primary judge's refusal to grant a stay or dismiss the action should stand.
31 In Voth, Mason CJ, Deane, Dawson and Gaudron JJ, in their joint judgment, sought to synthesise the opinions of the majority in Oceanic Sun Line Special Shipping Co Inc v Fay (supra) so that there would be a single authoritative statement of principle.
32 The proceedings were brought by two related companies against a Missouri accountant for alleged negligence in failing to provide certain advice. It was held, per Mason CJ, Deane, Toohey and Gaudron JJ, that the action should be stayed; per Mason CJ, Deane, Dawson and Gaudron JJ (at 557) on the ground that New South Wales was clearly an inappropriate forum.
33 In Oceanic and in Voth, the majority declined to apply the principles governing the doctrine of forum non conveniens as stated in the decision of the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460. The test laid down in Spiliada was to choose the forum in which the case could most suitably be tried, having regard to the interests of all the parties and the ends of justice, including considerations of efficiency, expedition and economy. An applicant would succeed by showing that there was another available forum which was clearly or distinctly more appropriate than the local forum.
34 In Voth (at 554), the joint judgment, which supported the "clearly inappropriate forum" test, identified the following common ground between the majority judgments in Oceanic. A plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. The traditional power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process, the rationale being the avoidance of injustice. The mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction will provide a more appropriate forum does not justify dismissal or stay. The jurisdiction to grant a stay or dismiss the action is to be exercised with great care or extreme caution.
35 These principles, it may be noted, raise a strong presumption against an application succeeding.
36 Observations were made in the joint judgment in Voth concerning the application of the "clearly inappropriate forum" test. At 558, it was said that the test focussed on the advantages and disadvantages arising from the proceedings continuing in the selected forum rather than on the need to make a comparative judgment between the two forums, although the suitability of the alternative forum was relevant to the appropriateness or otherwise of the selected forum.
37 At 558-9, it was said that the availability of relief in a foreign forum is a relevant factor. However, it was said that this consideration did not require the formation of subjective views about the comparative merits of legal systems. Indeed, circumstances could exist, it was said, in which the local court was clearly inappropriate notwithstanding that there was no alternative tribunal which would entertain the proceedings. The example was given of a claim for damages for personal injury where the courts of the only country with which the parties or the accident had any real connection were denied jurisdiction by a legislative scheme providing for limited benefits and compensation.
38 The majority went on to say (at 564) that, subject to the question of onus, the principles to be applied in applications for a stay on inappropriate forum grounds are those stated by Deane J in Oceanic.
39 I turn then to what was said by Deane J in Oceanic (at 247). His Honour accepted as correct the statement in St Pierre v South American Stores [1936] 1 KB 382, 398, namely, that the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him. Deane J said that "oppressive" should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging; and that "vexatious" should be understood as meaning productive of serious or unjustified trouble and harassment. This is strong language.
40 In that context, Deane J identified what he saw as the modern content of the traditional principles governing the present kind of application. The power was discretionary, involving a subjective balancing process in which the relevant factors would vary and in which the questions of comparative weight to be given to particular factors and the decision whether the power should be exercised are matters for individual judgment and, significantly, of impression. The power should only be exercised in a clear case. The onus lay on the defendant to satisfy the court that it is so inappropriate a forum that the continuation would be oppressive and vexatious to the defendant. Ordinarily, a defendant will not discharge the onus unless he can identify some appropriate and available foreign tribunal. The mere fact that a tribunal in some other country would be a more appropriate forum does not, however, necessarily mean that the local court is a clearly inappropriate one.
41 In the joint judgment in Voth (at 564-5), their Honours went on to say that, in the application of principle in the way stated by Deane J in Oceanic, the discussion by Lord Goff in Spiliada (supra) of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance.
42 The "connecting factors" mentioned by Lord Goff in Spiliada (at 478) were said by him to include not only factors affecting convenience or expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transactions and the places where the parties respectively reside or carry on business.
43 The observations by Lord Goff in Spiliada concerning "a legitimate personal or juridical advantage" (at 482-4) were, in tenor, against giving much weight to any such advantage on the part of the plaintiff. The observations included the following. The mere fact that the plaintiff has such an advantage in proceedings in the local court cannot be decisive. An advantage to the plaintiff will ordinarily give rise to a comparable disadvantage to the defendant. Differences in relation to the scale on which damages are awarded, procedures for discovery, power to award interest, and the relative generosity of limitation periods do not represent advantages which should deter a court from granting a stay. Systems of justice have their virtues and vices. Injustice is not done if a party is compelled to accept a well recognised system applicable in an appropriate forum elsewhere and, generally speaking, that is so even if the plaintiff's action would be time barred there.
44 In Voth, the argument that New South Wales was a clearly inappropriate forum was said in the joint judgment (at 566), to have been largely based on the proposition that the cause of action sued on was a foreign tort and that, in accordance with the second rule in Phillips v Eyre (1980) LR 6 QB 1 as explained in Breavington v Godleman (1988) 169 CLR 41, the plaintiff had to show, in order to succeed in the action in New South Wales, that there would be civil liability in Missouri on the part of the defendant. It was held that the tort, if there was one, was committed in Missouri and, accordingly, if the matter were litigated in New South Wales, the defendant would be liable to the plaintiff only if he was liable under the law of Missouri (at 569-70). The content of the law of Missouri, it was said, had a fundamental bearing upon the determination of the dispute between the parties (at 570).
45 Because the judgments at first instance and in the Court of Appeal were vitiated by error, the High Court exercised the discretion afresh. In doing so (at 570), the court took into account that the action had a substantial connection with the law of Missouri, among other considerations.
46 Conformably with what had been said in Spiliada (see above), scant weight was given in the joint judgment to any legitimate personal or juridical advantage to the plaintiff flowing from trial in New South Wales. The prima facie right of a plaintiff to choose the jurisdiction was acknowledged but, beyond that, it was said that any advantage to the plaintiff arising from a comparison of the law in the two jurisdictions had little weight (at 571).
47 The court mentioned (at 571) three further juridical advantages associated with trial in New South Wales: an effective limitation bar in Missouri; limited recovery of costs in Missouri; and a less advantageous rule relating to the award of damages by way of interest in Missouri. The first of these advantages was met by an undertaking not to plead the limitation defence. The second and third were said (at 571) to be of diminished importance in the context of the competing connections between the respective forums and the subject matter of the proceedings.
48 Having regard to those connections, it was held that New South Wales was clearly an inappropriate forum in which to permit the action to proceed (at 571). A stay was accordingly ordered, subject to an undertaking not to raise the limitation point in Missouri and provided the proceedings were commenced in Missouri within 3 months.
49 In summary, a plaintiff is entitled to choose where to sue. It is for the defendant to show that continuance of the action in that jurisdiction would work injustice, in the sense that it would be oppressive or vexatious to the defendant, being seriously and unfairly burdensome, prejudicial and damaging or productive of serious or unjustifiable trouble and harassment. Jurisdiction should be declined only in a clear case. Connecting factors are relevant. They include convenience and expense, the law governing the matter in question, and the places where the parties respectively reside or carry on business. Little weight is to be given to the juridical advantage to the plaintiff of suing in an Australian Court rather than in some other jurisdiction having a connection with the case.
50 As mentioned earlier in this judgment, the rules of the Supreme Court refer to "an inappropriate forum". However, on authority, the rules do not relax the common law test: WF Motors Pty Ltd v Maydwell (Supreme Court, 23 April 1993, unreported), C E Heath Underwriting & Insurance (Australia) Pty Ltd v Barden (Supreme Court, 19 October 1994, unreported), Zhang v Regie Nationale des Usines Renault SA [2000] NSWCA 188.
51 Considerations which work against any finding that this Court is a clearly inappropriate forum include the following: