Oceanic Sun Line Special Shipping Co Inc v Fay

Oceanic Sun Line Special Shipping Co Inc v Fay - [1988] HCA 32 - HCA 1985 case summary — Zoe

[8]

In 1983 the respondent and his wife made arrangements to travel to Europe. The arrangements were made by the respondent's mother-in-law, Mary Rossi, who was the proprietor of a Sydney travel agency known as Mary Rossi Travel. Mary Rossi Travel was organizing a luxury tour of Europe and the respondent and his wife decided to join the tour, but only for that section involving a cruise of the Greek islands on the " Stella Oceanis ". The respondent's wife went to Sydney from time to time to make the travel arrangements. She brought back a brochure containing information about "Sun Line 1983 Summer Cruises" to the Greek islands and she showed the respondent the cabin which had been booked for them. The respondent read the brochure only casually and in particular did not read any of the material printed inside the back cover under the heading "Things To Know Before You Go". On 30 March 1983 a deposit was paid to Mary Rossi Travel and in turn to J.M.A. Tours which was the general sales agent for Sun Line Cruises. On 7 April J.M.A. Tours raised an invoice against Mary Rossi Travel for the cost of the respondent and his wife's cruise on the " Stella Oceanis ". The invoice identified their cabin as A24. On or about 27 April 1983 the respondent and his wife went to Sydney where they paid Mary Rossi Travel the balance due for their overseas trip, including the Greek islands section of the tour. On the day following they flew to London and on 28 May they met up with Mrs. Rossi and members of the tour group in Athens. Before the respondent left Australia, he received an exchange order for the " Stella Oceanis " cruise portion of the tour. He received this document in exchange for payment to J.M.A. Tours of the cost of the tour. On 28 May Mrs. Rossi went to the Sun Line office in Athens where she presented the exchange vouchers on behalf of her tour members and received passage tickets, boarding passes and luggage labels. In accordance with her usual practice as tour leader, she held on to the tickets and presented them when the members of her party boarded the " Stella Oceanis " on 30 May.

[10]

The brochure which was given to the respondent's wife in Sydney before the booking was made is a glossy magazine of more than thirty pages, with many photographs and details of places involved in the appellant's cruises. It has details of cabins and their cost together with other information of a general nature relating to ships, crews and activities. On the inside of the back cover of the brochure, under the heading "Things To Know Before You Go", is information about cancellations and refunds, alterations to the itinerary, port taxes, baggage liability and the like. The information commences with the words: "The attention of passengers is drawn to the General Conditions of transportation set out in the Passage Contract." Under the heading "Responsibility" is a statement that "[t]he transportation of passengers and baggage is governed by the terms and conditions printed on the Passenger Ticket Contract which may be inspected at any Sun Line office. Passenger's acceptance of that ticket constitutes agreement of those terms and conditions". As already mentioned, no tickets were available in Sydney and none was received by the respondent until after arrival in Greece. It is unclear whether there was a Sun Line office in Australia. In the course of argument, counsel for the respondent contended that the appellant carried on business at the office of J.M.A. Tours in Sydney. This was the first time that such a contention had been advanced in the course of the proceedings. In disputing its correctness, counsel for the appellant replied that no attempt was made to serve process on the appellant in Sydney and that leave was sought and obtained to effect service in Greece. The relationship between the appellant and J.M.A. Tours does not appear to have been explored before Yeldham J. His Honour proceeded on the basis that the appellant did not carry on business in Australia. We consider we must do the same. It is not in issue that Mrs. Rossi received the ticket on behalf of the respondent.

[15]

When Mary Rossi Travel paid to J.M.A. Tours a deposit on behalf of the respondent, there was an offer by the latter to secure a passage on a particular Sun Line cruise. Whether a contract of carriage thereupon came into existence is doubtful, although the invoice of 7 April 1983 is headed "Final Invoice And Confirmation". But the parties did enter into such a contract once payment of the balance was made and an exchange order was issued. In the ordinary course a ticket would, at that stage, have issued to the respondent. For reasons connected no doubt with the appellant's administration, no tickets were available in Sydney. Nevertheless the exchange order constituted a contract made between the parties whereby in consideration of money paid by the respondent the appellant allocated to him an identified cabin on an identified cruise. It is true that by the exchange order the appellant reserved "the right to cancel any cruise, in which case the passage money will be refunded". On the other hand, "in the event of the passenger cancelling his passage passage money will not be refunded. only if space released is resold will the passage money be refunded." These may have been terms of the contract made between passenger and shipper; they did not prevent a contract from coming into existence. Whether the right to "cancel" a cruise was one that could be exercised arbitrarily or whether it was subject to some implication of reasonableness it is unnecessary to dwell upon. But a right in one party to determine a contract, even though there has been no breach by the other party, is by no means uncommon: see Anson's Law of Contract, 26th ed. (1984), p. 438. If a contract of carriage was not concluded before the respondent left Australia then it must follow that, notwithstanding that the entire passage money had been paid and that a particular cabin on a particular vessel had been allocated to him for a specified cruise and that although nothing remained for him to do except to present himself in Athens with the exchange order, the appellant came under no obligation to carry him until he did so. Such a construction of the circumstances flies in the face of common sense and cannot be accepted. When he left Australia the respondent had a contractual right to receive from the appellant on presentation of the exchange order in Athens a passage ticket which enabled him to board the vessel and occupy the specified cabin for the duration of the cruise subject only to such conditions as are found to form part of the contract.

[33]

" In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English court." However, this statement, like other statements during the development of these principles since 1973, has now been overtaken. In Spiliada Lord Goff of Chieveley, in a speech concurred in by the other members of the House, made a definitive statement of the present law of England. His Lordship declared [27] that in cases where jurisdiction has been founded as of right, i.e., where the defendant has been served with proceedings within the jurisdiction, the defendant may now apply to the court to exercise its discretion to stay the proceedings on the ground which is usually called forum non conveniens. He cited with approval, as expressing the principle applicable in Scotland and now in England, the classic statement of Lord Kinnear in Sim v. Robinow [28] : [T]he plea can never be sustained unless the Court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice (our emphasis). Lord Goff then cited the restatement of Lord Diplock in MacShannon (which we have set out above), describing it as no more than "a tentative statement at an early stage of a period of development" [29] . Clearly, the fact that a stay might deprive the plaintiff of a legitimate personal or juridical advantage cannot be decisive if regard is to be had to the interests of all the parties and the ends of justice. His Lordship detailed [30] the approach which a court should take in determining whether or not to grant a stay. He did so on the basis that, notwithstanding the use of the Latin, the object is to find, not the convenient, but the appropriate forum. The court must first look for the forum with which the action has the most real and substantial connexion. The connecting factors in this regard will include matters of convenience and expense, the law governing the relevant transaction and the places where the parties respectively reside or carry on business. If the court concludes at that stage that there is some other available forum which prima facie is clearly or distinctly more appropriate for the trial of the action (the onus of proof resting with the defendant), it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted (the onus of proof in this regard resting with the plaintiff). 1. [1978] A.C., at pp. 811-812. 2. [1987] 1 A.C., at p. 474. 3. (1892) 19 R. 665, at p. 668. 4. [1987] 1 A.C., at p. 475. 5. [1987] 1 A.C., at pp. 476-478.

[45]

[a] stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice. There is clearly a difference of emphasis between the two statements: first, to focus the search on the appropriate forum supplies a broader frame of reference than a concentration on convenience and expense; secondly, the absence of any reference to a legitimate personal or juridical advantage in the Spiliada statement diminishes the prominence which that consideration is to have in the inquiry. Furthermore, what is to the advantage of one party will almost certainly be to the disadvantage of the other. A limitation provision may disadvantage a plaintiff if he is required to take proceedings elsewhere; equally, it may disadvantage the defendant if the action is not stayed: see Briggs, Forum Non Conveniens - The Last Word? [1987] Lloyd's Maritime & Commercial Law Quarterly 1, at pp. 3-4. A plaintiff may expect to receive higher damages in one jurisdiction than another; is that a legitimate advantage? Cf. Castanho v. Brown & Root (U.K.) Ltd. [47] and Smith Kline & French Laboratories Ltd. v. Bloch [48] . In de Dampierre v. de Dampierre [49] , Lord Goff said the conclusion reached in Spiliada was that having regard to the underlying principle, the court should not, as a general rule, be deterred from granting a stay of proceedings simply because the plaintiff in this country will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the appropriate forum overseas . 1. [1987] 1 A.C., at p. 465. 2. [1978] A.C., at p. 812. 3. [1987] 1 A.C., at p. 475. 4. [1987] 1 A.C., at p. 476. 5. [1981] A.C. 557. 6. [1983] 1 W.L.R. 730; [1983] 2 All E.R. 72. 7. [1988] 1 A.C. 92, at p. 110.

[49]

We begin our search for the appropriate forum by asking the question - with which forum has the action the most real and substantial connexion? On our provisional finding the contract of carriage, in the course of the performance of which the alleged tort was committed, was made in New South Wales. That is certainly a material consideration but it must be remembered that the action is not an action for breach of contract. It is an action in tort for a wrong allegedly committed by an appellant which is incorporated in Greece and carries on business there, in respect of an accident which occurred in Greek waters on a Greek vessel in the course of a cruise which had its point both of departure and return in a Greek port. The significance of forming a view as to where the contract of carriage was made lies in the consequences for the content of that contract and in particular the place, if any, of cll. 12 and 13 of the ticket in that contract. But the application for a stay was not founded upon the submission to Greek jurisdiction contained in cl. 13. It was based on the doctrine of forum non conveniens; the existence of cl. 13 was one of a number of matters upon which the appellant relied in support of its application. It seems to us also, although the proposition is contested by the respondent and notwithstanding our conclusion that the contract was made in New South Wales, that prima facie the proper law of the contract is the law of Greece. The test for discovering the proper law of the contract (i.e., in general terms, "the substantive law of the country which the parties have chosen as that by which their mutual legally enforceable rights are to be ascertained" (per Lord Diplock in Amin Rasheed [52] ) is well established. One looks for "the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connexion": Bonython v. The Commonwealth [53] . The contract being provisionally found to be constituted by nothing more than the payment of the fare and the issuing of an exchange order, the printed conditions on the passage ticket not being incorporated in the contract, there is obviously no express identification of the proper law. The decisive consideration, in our view, is that the contract was to be wholly performed in Greece or in localities close to Greece. An additional factor in support of Greek law as the proper law of the contract is that passengers for the cruise provided by the appellant were drawn from the United States of America as well as Australia and no doubt from other countries. It would be extraordinary, as Kirby P. observed, if the obligations of the appellant towards its passengers were to be governed by a variety of different laws, depending on where the fare was paid and the contract concluded.

[54]

We think it necessary to say something about the phrase "the ends of justice" which was used by Lord Kinnear in Sim v. Robinow [55] and adopted by Lord Goff in Spiliada . The relevant inquiry does not require the court to embark at the outset upon an investigation of the relevant law that would be applied if the action were to be determined in some other court. For instance, in the present case the Court is not directly concerned with the likely fate of an argument in a Greek court that the respondent is bound by the terms of cl. 12 of the ticket. The expression "the interests of all the parties and the ends of justice" is a composite one. This is best understood and given effect to by recognizing that the initial onus lies on the appellant (in this case) to demonstrate that some forum other than New South Wales is more appropriate because it is the forum with which the action has the most real and substantial connexion. The substantive law to be applied in either forum is not, in this regard, a material consideration. If that onus is satisfied, it is then for the respondent (in this case) to persuade the Court that the interests of the parties and the ends of justice will nevertheless best be served by refusing a stay. He might do so by showing that he will be deprived of a "legitimate personal or juridical advantage" in the alternative forum: cf. MacShannon [56] . He might show (in the present case for instance) that if he brought the action in Greece the ticket is likely to be treated as part of the contract of carriage and that there is no power in a Greek court to override a provision such as cl. 12. Or he might point to the risk that a foreign litigant will not get justice in such a court: The "Abidin Daver" [57] . In the absence of any evidence on these matters, they cannot supply any sound basis for a conclusion that the interests of all the parties and the ends of justice will not be best served by an order which results in the action being heard in that forum with which it has the most real and substantial connexion.

[63]

Pursuant to r. 2(1), the plaintiff obtained ex parte an order giving him leave to serve the originating statement of claim upon the defendant at its principal place of business in Athens in the Republic of Greece. The statement of claim was served accordingly and the defendant entered a conditional appearance. It then moved for an order that the statement of claim be set aside or struck out on the ground that the Court had no jurisdiction or for an order that service of the statement of claim be set aside or for an order that the proceedings be stayed. Yeldham J. dismissed the defendant's notice of motion and his decision was affirmed on appeal by a majority of the Court of Appeal (Glass and McHugh JJ.A., Kirby P. dissenting). On appeal to this Court, the defendant put at the forefront of its argument the proposition that the Supreme Court has jurisdiction to stay or dismiss the action on the ground of forum non conveniens and the defendant sought an order in exercise of that jurisdiction. A similar order was made by the Supreme Court of the State of New York in proceedings earlier commenced in that Court by the plaintiff against the defendant, the courts of Greece being considered to be the appropriate forum. Before examining the relevant principles of private international law as they have developed in this country, the material facts should be more fully stated. Dr. and Mrs. Fay, who live in Nerang in Queensland, engaged the services of a travel agency conducted by Mrs. Fay's mother, Mrs. Mary Rossi, to arrange their overseas trip. The offices of Mary Rossi Travel are in Sydney. Mary Rossi Travel furnished a brochure relating to the cruise to Dr. and Mrs. Fay, and subsequently made a booking on their behalf with J.M.A. Tours, another Sydney travel agency, which is the Australian agent for Sun Line Cruises ("Sun Line"). That firm or enterprise consists of the defendant and another corporation both of which operate ships which cruise in Greek waters. Mrs. Mary Rossi was to lead a party of clients including the Fays on the cruise of the " Stella Oceanis ". Mary Rossi Travel, being put in funds by Dr. and Mrs. Fay, paid J.M.A. Tours in Sydney the fares payable on their behalf and J.M.A. Tours issued in the names of Dr. and Mrs. Fay a document described as an "exchange order". The exchange order was on a printed form which provided spaces in which the issuing office enters particulars of the intending passenger, the ship and cruise which has been booked, the intending passenger's cabin and berth, and the fare and port taxes paid. The exchange order bore the following endorsement:

[70]

As this appeal is brought from a judgment of the Supreme Court of New South Wales, the issues arising on this appeal fall to be determined by the law administered by that Court. That law is, of course, the law of New South Wales and, in particular, the private international law of that State. Before identifying the issues for determination, it is convenient to mention some problems with which this appeal is not concerned. First, the appeal is not concerned with the recognition or enforcement in Greece or elsewhere outside Australia of any judgment which might be entered in this action. Those are matters for the law of the place where recognition or enforcement might be sought at some later time. The Supreme Court of New South Wales has no power to compel recognition or enforcement of its judgments by the courts of another country. Next, the defendant does not now challenge the effectiveness of the service of the originating statement of claim pursuant to an order giving leave to serve the originating process on the defendant in Greece under Pt 10, rr. 1(1)(e) and 2(1). The validity of those rules is not now in question (cf. Flaherty v. Girgis [58] ) and no challenge is made to the sufficiency of the service to satisfy the terms of the order giving leave to serve. Nor is it in dispute that, subject to service, the Supreme Court has jurisdiction to entertain an action for damages for personal injury tortiously inflicted outside New South Wales when certain qualifications, which we need not now consider, are met. The substantial question on this appeal is, as it was in the courts below, whether the Supreme Court should order that the action be stayed or dismissed on the ground either that the plaintiff is bound by an agreement that "any action against the Carrier must be brought only before the courts of Athens Greece" or that, having regard to all the circumstances of the case, Greece is the appropriate forum for the litigation of the plaintiff's claim and the Supreme Court of New South Wales should dismiss or stay the action in that Court in the exercise of a discretion, leaving the plaintiff to pursue his remedy (if any) in Greece. These grounds require separate consideration.

[73]

It may be thought that the terms of a contract should be ascertained by reference to its proper law, i.e., the system of law by reference to which the contract is made or the system of law with which the transaction has its closest and most real connexion: Bonython v. The Commonwealth [61] . A submission to the exclusive jurisdiction of the tribunals of a particular country is an indicium of the parties' intention that the law of that country is to be the proper law of their contract: Compagnie d'Armement Maritime S.A. v. Compagnie Tunisienne de Navigation S.A. [62] . And so, in the present case, if the supposed submission to the exclusive jurisdiction of the Athenian courts is in truth a term of the contract of carriage governing the liability of the defendant for the plaintiff's injury, there is a significant indicium that Greek law is the proper law of that contract. There are other indicia tending towards the same conclusion: the flag of the M.S. " Stella Oceanis ", the domicil of the ship's owner and operator and the fact that the ship was to sail from and return to Piraeus and cruise in Greek waters are factors tending to a finding that Greek law is the proper law of the contract of carriage. But, for the purpose of determining whether the contract of carriage was made when the fares were paid to J.M.A. Tours in New South Wales and whether that contract contained the exclusive foreign jurisdiction clause set out in cl. 13 of the ticket, the system of law by reference to which those questions must be answered cannot be identified by assuming that the contract contained the clause. The question whether a contract has been made depends on whether there has been a consensus ad idem and the terms of the contract, if made, are the subject of that consensus. At all events, those are the issues which an Australian court necessarily addresses when it seeks to determine the existence of what the municipal law of this country classifies as a contract. Classification is, of course, a matter for the law of the forum. In deciding whether a contract has been made, the court has regard to all the circumstances of the case including any foreign system of law which the parties have incorporated into their communications, but it refers to the municipal law to determine whether, in those circumstances, the parties reached a consensus ad idem and what the consensus was: cf. Mackender v. Feldia A.G. [63] , per Diplock L.J. There is no system other than the municipal law to which reference can be made for the purposes of answering the preliminary questions whether a contract has been made and its terms. Mr. D. F. Libling, Formation of International Contracts Modern Law Review, vol. 42 (1979), p. 169 (an article to which Gaudron J. has drawn my attention) discusses the reasons why it is inappropriate to determine those questions by reference to the so-called putative proper law of a supposed contract.

[77]

The exemption of the ticket in this case fully occupies the whole area of possible obligation, leaving no room for the existence of a contract of carriage. Jacobs J. [66] also regarded the exemption clause as showing that the carrier "undertakes no executory obligation which creates rights in an obligee". Stephen J. [67] did not find it necessary to reach that conclusion. The defendant submits that the exemption clause in the exchange order is comparable with the clauses in the ticket in MacRobertson Miller. As the exemption clause in the exchange order is significantly different from the exemption clauses in the ticket in MacRobertson Miller, it is not necessary to analyse the construction which Barwick C.J. and Jacobs J. placed on those clauses in that case. The exemption indorsed on the exchange order is not so wide as to preclude the existence of any contractual obligation on the part of the defendant when the exchange order was issued. To the contrary, the exchange order contains promises to refund the fare if the cruise is cancelled and to exchange the exchange order for a "Sun Line ticket when boarding vessel" if the cruise is to proceed. So far as appears from the terms of the exchange order, if the cruise proceeds, the passenger is contractually entitled on presentation of the exchange order to a ticket entitling him to be carried. The defendant reserves no right to cancel any ticket or booking or to refuse to carry the passenger named in the exchange order if the booked cruise proceeds. True it is that cl. 3 of the Sun Line ticket purports to reserve those rights but, if the contract is made when the fare is paid, the ticket cannot alter the parties' contractual rights and obligations. If it had been intended that no contract should come into existence before the issue of the ticket "when boarding vessel", no consideration would have moved from the defendant to support the defendant's right (as asserted in the exchange order) to refuse to refund the passage money in the event of a passenger cancelling his passage. The proposition that no contract was made when the exchange order was issued in Sydney must be rejected. Next it is necessary to determine whether the contract then made was the contract of carriage and, if so, whether it contained the exclusive foreign jurisdiction clause. 1. (1975) 133 C.L.R. 125. 2. (1975) 133 C.L.R., at p. 133. 3. (1975) 133 C.L.R., at p. 148. 4. (1975) 133 C.L.R., at p. 140.

[93]

However, the question that I am bound to pose to myself is not simply, "Which is the more convenient forum?" The principles to be applied in such a case as this were laid down by the High Court in Maritime Insurance Co. Ltd. v. Geelong Harbor Trust Commissioners [19] . Sir Samuel Griffith, whose judgment was concurred in by the other members of the court, said [20] : "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] [21] . 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 [22] ] "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." " The best-known statement of the established principles is to be found in the judgment of Scott L.J. in St. Pierre v. South American Stores (Gath & Chaves) Ltd. [23] . There, speaking of the statutory power to stay conferred by s. 41 of the Supreme Court of Judicature (Consolidation) Act 1925 UK his Lordship said: The true rule about a stay under s. 41, so far as relevant to this case, may I think be stated thus: (1.) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English Court if it is otherwise properly brought. The right of access to the King's Court must not be lightly refused. (2.) In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) 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 or would be an abuse of the process of the Court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant. These propositions are, I think, consistent with and supported by the following cases: McHenry v. Lewis [24] ; Peruvian Guano Co. v. Bockwoldt [25] ; Hyman v. Helm [26] ; Thornton v. Thornton [27] ; and Logan v. Bank of Scotland [No. 2]. Unless a defendant is able to show oppression, vexation or other abuse of process, the first condition is unsatisfied and a stay is refused. A defendant does not discharge the burden of proof merely by showing that the balance of convenience favours litigation in some other forum. The policy of the law is to allow "any plaintiff bona fide seeking relief to have unrestricted access to the seat of judgment" (per Lord Simon of Glaisdale in The "Atlantic Star" [28] ) and that is a policy which prevails unless oppression, vexation or other abuse of process is shown. 1. [1974] A.C. 436. 2. (1968) 11 F.L.R. 488, at pp. 492-493. 3. (1908) 6 C.L.R. 194. 4. (1908) 6 C.L.R., at p. 198. 5. [1906] 1 K.B. 141, at p. 150. 6. [1907] 2 Ch. 205, at p. 213. 7. [1936] 1 K.B. 382, at p. 398. 8. (1882) 22 Ch. D. 397. 9. (1883) 23 Ch. D. 225. 10. (1883) 24 Ch. D. 531. 11. (1886) 11 P.D. 176. 12. [1974] A.C., at p. 473.

[95]

There are plenty of earlier examples of the use of the words "oppressive" and "vexatious" in this context. But the words have, at all events today, certain shades of meaning which make it difficult to accept an uncritical construction as appropriate to all circumstances in which guidelines - and they are nothing more - may be required. "Oppressive" is an adjective which ought to be, and today normally is, confined to deliberate acts of moral, though not necessarily legal, delinquency, such as an unfair abuse of power by the stronger party in order that a weaker party may be put in difficulties in obtaining his just rights. "Vexatious" today has overtones of irresponsible pursuit of litigation by someone who either knows he has no proper cause of action, or is mentally incapable of forming a rational opinion on that topic. So long as "oppressive" and "vexatious" were understood in this rather strict sense, the court's duty to exercise its jurisdiction when it was regularly invoked (Ashby v. White [2] ; Browne v. Commissioner for Railways [3] ) was qualified only by the need to avoid injustice to the defendant, and then only where it was possible to do so without injustice to the plaintiff. But the majority in The "Atlantic Star" chose to pursue a different and more elusive policy than that to which Scott L.J.'s formulation gave effect. The new policy was not designed to prescribe limited exceptions to the court's duty to exercise its jurisdiction; the new policy sought to identify the forum in which the plaintiff should be constrained to litigate. By that policy, it was hoped to achieve an ideal result - a trial in the forum which would be the most suitable available forum having regard to the interests of both plaintiff and defendant. No longer was the inquiry directed to the question whether an exercise of jurisdiction would result in injustice to the defendant. The basic principle which implements the new policy was stated by Lord Goff of Chieveley in Spiliada [4] in these terms: [A] stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice. 1. [1974] A.C., at p. 477. 2. (1703) 2 Ld Raym. 938, at p. 956; 92 E.R. 126, at p. 138. 3. (1935) 36 S.R. (N.S.W.) 21, at pp. 28-29. 4. [1987] 1 A.C., at p. 476.

[97]

take into account (i) any advantage to the plaintiff; (ii) any disadvantage to the defendant; this is the critical equation, and in some cases it will be a difficult one to establish. Generally this is done by an instinctive process - that is what discretion, in its essence, is. He added [9] : I think too that there must be a relative element in assessing both advantage and disadvantage - relative to the individual circumstances of the plaintiff and defendant. Once the inquiry became a balancing exercise, it was impossible to maintain the formulation of Scott L.J. as the guiding principle, as Lord Diplock pointed out in MacShannon v. Rockware Glass Ltd. [10] . He restated Scott L.J.'s formula [11] so as to compare the convenience and expense of trials in the available fora and so as to preserve for a plaintiff "a legitimate personal or juridical advantage". Lord Diplock's restatement proved to be an inadequate bank to hold back the tide of a broad, virtually unstructured discretion. Lord Salmon said [12] : To my mind, the real test of stay or no stay depends upon what the court in its discretion considers that justice demands. I prefer this test to the test of whether the plaintiff has behaved "vexatiously" or "oppressively" on a so-called liberal interpretation of these words. I do not, with respect, believe that it is possible to interpret them liberally without emasculating them and completely destroying their true meaning. Lord Fraser of Tullybelton adopted the test whether a stay would produce injustice but thought that that question could be answered "generally" by Lord Diplock's restatement [13] . Lord Russell of Killowen thought that the result of MacShannon was to stop "not far short of balance of convenience" [14] . Lord Keith of Kinkel developed two further notions: the notion of a "natural forum" and the notion of injustice consisting in a serious, outweighing disadvantage. He said [15] : Where England is the natural forum for the action, in the sense of being that with which the action has the most real and substantial connection, it is necessary for the defendant, in order to establish injustice to him and no injustice to the plaintiff, to show some very serious disadvantage to him which substantially outweighs any advantage to the plaintiff. Where, however, the defendant shows that England is not the natural forum and that if the action were continued there he would be involved in substantial (i.e., more than de minimis) inconvenience and unnecessary expense, or in some other disadvantages, which would not affect him in the natural forum, he has made out a prima facie case for a stay, and if nothing follows it may properly be granted. The plaintiff may, however, seek to show some reasonable justification for his choice of forum in the shape of advantage to him. If he succeeds it becomes necessary to weigh against each other the advantages to the plaintiff and the disadvantages to the defendant, and a stay will not be granted unless the court concludes that to refuse it would involve injustice to the defendant and [the grant would involve] no injustice to the plaintiff. As to the nature of the advantages and disadvantages which may go into the scale on either side I am of opinion that they must be such as are capable of being objectively demonstrated. In The "Abidin Daver" [16] Lord Brandon of Oakbrook pointed out that a defendant no longer had to satisfy the court that continuance of the action would be oppressive or vexatious to him: [T]he exercise of the court's discretion in any particular case necessarily involves the balancing of all the relevant factors on either side, those favouring the grant of a stay on the one hand, and those militating against it on the other. Such balancing may be a difficult process and some cases may be very near the line. In that case, Lord Diplock [17] thought the time had come to acknowledge that the English law was "indistinguishable from the Scottish legal doctrine of forum non conveniens" - the doctrine which had been rejected in The "Atlantic Star" [18] . 1. [1974] A.C., at p. 454. 2. [1974] A.C., at pp. 464, 468. 3. [1974] A.C., at p. 475. 4. [1974] A.C., at p. 468. 5. [1974] A.C., at p. 469. 6. [1978] A.C. 795, at p. 811. 7. [1978] A.C., at p. 812. 8. [1978] A.C., at p. 819. 9. [1978] A.C., at p. 822. 10. [1978] A.C., at p. 823. 11. [1978] A.C., at p. 829. 12. [1984] A.C. 398, at p. 419. 13. [1984] A.C., at p. 411. 14. [1974] A.C. 436.

[103]

In retrospect, the English law can be seen to have moved from a discretion confined by a tolerably precise principle to a broad discretion to be exercised according to the judge's view of what is suitable "for the interests of all the parties and the ends of justice". The new approach can offer little guidance to a judge in ascertaining what is "suitable" when the parties have opposing interests, when advantage to one is disadvantage to the other, and when the choice of forum is the very means by which one party's interest is preferred over the other. Once the test involves a balancing of the interests of plaintiff and defendant, the court is inevitably involved in a discretionary conferring of an advantage on one party and a disadvantage on the other; it is involved not in the enforcement of existing rights and liabilities but in the creation, modification or abolition of rights and liabilities. If the touchstone to guide the exercise of such a discretion is to be "the ends of justice", how can a court decide what is just in the particular case except by reference to the law which would govern the matter if it were tried in that court? Even if it were right to disregard procedural advantages involved in refusing a stay, how can a court decide that the ends of justice are served by granting a stay if the law applied in the alternative forum imposes substantive disadvantages - as, e.g., by holding a claim to be time-barred, by assessing damages at a higher or lower level or, as perhaps in the present case, by construing a contract differently? The justice which our courts dispense is justice according to our law; the courts cannot compare justice according to differing laws in order to say what satisfies the ends of justice in some abstract sense. The function which the courts of this country would be required to perform if the new English approach were adopted would, in my respectful view, be inconsistent with what we have hitherto understood to be the function and the duty of courts: the function of enforcing rights and liabilities according to the law of the forum (including private international law) and the duty to exercise jurisdiction which is regularly invoked unless the invocation of the jurisdiction is oppressive, vexatious or otherwise an abuse of process.

[114]

The only case in this Court in which it has been found necessary to examine the principles applicable to determine an application by a defendant to a court of competent jurisdiction to have proceedings against him dismissed or stayed on the ground that the action should be brought in a tribunal of some other country is Maritime Insurance Co. Ltd. v. Geelong Harbor Trust Commissioners [30] . There, Griffith C.J., in a judgment concurred in by the other members of the Court (Barton, O'Connor and Higgins JJ.), identified the relevant principles by quoting extensively from the judgment of Sir Gorell Barnes P. inLogan v. Bank of Scotland [No. 2] [31] . In that judgment, with which Collins M.R. and Romer L.J. agreed, Sir Gorell Barnes concluded that the power of a court to stay or dismiss proceedings within its jurisdiction on the ground that the proceedings should have been brought in a tribunal of another country is limited to cases which fall within the general principle empowering a court to dismiss or stay proceedings which are vexatious or oppressive or an abuse of process. Equally important for present purposes, his Lordship held, in words quoted and accepted by Griffith C.J., that the inconvenience of trying a case in a particular tribunal may, of itself, "be such as practically to work a serious injustice upon a defendant and be vexatious": Logan [32] ; Maritime Insurance Co. [33] . The general (or traditional) approach which emerges from Maritime Insurance Co. is that the power of a court whose jurisdiction has been regularly invoked to dismiss or stay proceedings on the ground that they should have been brought in some tribunal in another country is limited to the case where the court is persuaded that it is such an unsuitable or inappropriate forum for their determination that their continuance would work a serious injustice in that it would be oppressive and vexatious to the defendant. On that traditional approach, the clear inappropriateness of the local forum may justify dismissal or a stay. The mere fact that some foreign tribunal would represent a "more appropriate" forum will not.

[119]

In my opinion, however, the jurisdiction of the Court to stay proceedings on the ground of vexation should be exercised with great care; indeed, I find that Cotton L.J. in McHenry v. Lewis [41] , said: "In the first place, it is a jurisdiction which one ought to exercise with extreme caution. Stopping in the middle of a suit a plaintiff from going on, when he has a right of action as against the defendant, is a jurisdiction which has to be exercised with very considerable caution." Not only is the jurisdiction one which should be exercised "with great care" or "extreme caution". It has, as has been indicated, traditionally been seen as a jurisdiction which is only available to be exercised on inappropriate forum grounds where the court whose jurisdiction has been invoked by the plaintiff is so inappropriate for their determination that a continuance of the proceedings in it would be productive of the injustice of oppression and vexation of the defendant. The basis in principle of the relevant jurisdiction to stay or dismiss and the reason why that jurisdiction has traditionally been seen as so confined were explained by Bowen L.J. in Peruvian Guano Co. v. Bockwoldt [42] : When a plaintiff comes into an English Court he asks for justice. The Court is bound therefore not to refuse to hear his case, or to put him under difficulties in the way of having his action brought to a conclusion. Of course that rule does not mean that a plaintiff, under the pretence of asking for justice, is to do that which is oppressive and vexatious, and the Courts have always at Common Law , and no doubt in Equity also, interfered to prevent a plaintiff under colour of asking for justice from harassing others. Therefore, when that which he is asking for is frivolous, or sometimes when he is asking for it in a way which necessarily involves injustice, the Courts have interfered (emphasis added). As that passage makes clear, the rationale of the traditional jurisdiction to stay or dismiss proceedings on inappropriate forum grounds lies in the avoidance of injustice between the parties in the circumstances of the particular case rather than in more general considerations relating to the overall administration of justice. 1. [1978] A.C. 795, at p. 818. 2. (1968) 11 F.L.R. 488, at p. 492. 3. [1906] 1 K.B., at p. 150. 4. (1882) 22 Ch. D., at p. 406. 5. (1883) 23 Ch. D. 225, at p. 233.

[120]

It should be noted that there are two aspects of the description, in Logan [43] and Maritime Insurance Co. [44] , of the task of a court in dealing with such an application for dismissal or a stay. The first is that the court should "see clearly that in stopping an action it does not do injustice". The second is that the court "ought to interfere" where a defendant who objects to the exercise of the jurisdiction would be subjected to vexation and oppression if the proceedings were allowed to continue. Obviously, the injustice referred to in the first of those aspects is injustice to the plaintiff (or, if one of a number of defendants seeks a stay, to the other parties) since the grant of a stay will not involve injustice to a defendant who has applied for it. In Egbert v. Short [45] and in some leading subsequent cases (see, in particular, St. Pierre v. South American Stores (Gath & Chaves) Ltd. [46] ), one finds this first aspect identified as being that the stay must not cause "an injustice to the plaintiff " (emphasis added). A problem with that formulation is that it is prone to encourage the approach that the question whether the grant of a stay would not cause an injustice "to the plaintiff" and the question whether the continuation of the proceedings would be vexatious or oppressive to the defendant do not involve a weighing process, but are isolated questions which must each be independently answered in the affirmative before an order can properly be made dismissing or staying the action. Such an approach appears to me to be artificial and unsound in that it diverts what were correctly seen by the English Court of Appeal in Logan and by this Court in Maritime Insurance Co. as two complementary aspects of the one process into two isolated processes. If a not illegitimate advantage which the plaintiff would lose if proceedings in a prima facie inappropriate court were dismissed or stayed is inconsequential when compared to the oppression or vexation of the defendant if the proceedings are permitted to continue, there will be no relevant injustice to the plaintiff involved in a stay or dismissal. All that will be involved is that the requirements of justice dictate that his claim to that comparatively inconsequential, though not illegitimate, advantage be overridden. On the other hand, the second aspect (i.e., that a continuation of the action would be oppressive or vexatious to the defendant) is not confined to a consideration of the circumstances of the defendant alone. Notions of vexation and oppression in this context involve an essential element of injustice. If the action has a significant connexion with the territorial jurisdiction of the local court (e.g., domicile of the defendant, locus of the relevant transactions, applicable law) and regularly instituted proceedings in that court involve some legitimate and substantial advantage to the plaintiff (e.g. effective enforcement of any judgment) which would not be available in proceedings in the foreign tribunal which the defendant claims is the appropriate one for their determination, it is difficult to imagine circumstances in which it could properly be held by the local court that it was such an inappropriate forum for the proceedings that their continuance would be oppressive or vexatious to the defendant. On the other hand, if the action has no significant connexion at all with the territorial jurisdiction of the court in which it is instituted, it could not be said that the mere fact that the plaintiff was pursuing a not illegitimate advantage for himself (presumably to the disadvantage of the defendant) must, regardless of the burden imposed upon the defendant by reason of the location of the forum, preclude a conclusion that a continuance of the proceedings would be vexatious or oppressive (cf., e.g., the judgment of Vaughan Williams L.J. in In re Norton's Settlement; Norton v. Norton [47] where his Lordship made plain that it would suffice for a stay if "the expense and inconvenience are of such a character that to allow the action to go on would result in real injustice to the other litigant" and explained that, in the particular case, he had "not thought it necessary to deal in detail with the question of the relative expense and convenience [of proceedings in the competing forums] because the English venue was not chosen for any legitimate reason"). In that regard, examination of the judgment in Maritime Insurance Co. [48] discloses that Griffith C.J. disposed of the case on the basis that the question whether an order for a stay should be made involved a comparison of the prejudice or loss of advantage to the plaintiff which would be involved in the grant of a stay and the prejudice to the defendants which would flow from a continuance of the action in the Supreme Court of Victoria. Likewise, Warrington J. made clear in his judgment in Egbert v. Short [49] that he did not regard his statement that the court ought not grant a stay if "an injustice will be caused to the plaintiff" as excluding a weighing process. To the contrary, when he came to apply principle to fact, Warrington J. formulated [50] "the only question" as being whether staying the proceedings would cause "an injustice" to the plaintiff "sufficient to outweigh serious injustice to the defendant if the action is allowed to go on": see, also, the discussion in the speech of Lord Wilberforce in The "Atlantic Star" [51] .

[122]

In The "Atlantic Star" [52] , Lord Wilberforce, in the course of a discussion of traditional principles, drew attention to the danger of the adjectives "oppressive" and "vexatious", which are neither technical nor statutory words, "being too rigidly construed and applied" in determining whether proceedings should be stayed or dismissed on inappropriate forum grounds. Those words have an overlapping denotation in that circumstances which can properly be described by one will often be equally susceptible of being described by the other. They were initially applied to the conduct of the plaintiff in bringing or seeking to continue the proceedings. In the well-known statement of principle in Scott L.J.'s judgment inSt. Pierre v. South American Stores [53] however, they were not used as directly descriptive of the conduct of the plaintiff but as descriptive of the objective effect which continuance of the action would have on the defendant: "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 ". On that approach which, in my view, should be accepted as correct, I do not think that one should read into the words a requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff: note the contrary view expressed by Lord Kilbrandon in The "Atlantic Star" [54] and by Lord Salmon in MacShannon [55] . Rather, it seems to me that those words should be read, in the St. Pierre formulation, as describing and characterizing the objective effect, on balance, of a continuation of the particular forum as the venue of the proceedings rather than as describing the conduct of the plaintiff in selecting or persisting with that forum (cf. per Gibbs J., Cope Allman [56] : "the exercise of jurisdiction would be vexatious to the defendants or would result in any real injustice to them"). That reading of the words is consistent with the approach adopted by this Court in Maritime Insurance Co. [57] , where the Court engaged in an assessment of what the effect of continuation of the proceedings in the Victorian Supreme Court would, on balance, be as a matter of objective fact. If the plaintiff is not acting bona fide or in pursuit of a legitimate advantage in pursuing the proceedings in the legal system of this country, that will, of course, make it much easier for a continuation of the proceedings to be characterized as vexatious or oppressive, since there will be little if anything to put into the balance against the inconvenience which would be sustained by the defendant. On that approach, "oppressive" should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while "vexatious" should be understood as meaning productive of serious and unjustified trouble and harassment.

[124]

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. [58] ), 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.

[127]

It has been pointed out in Scottish, English and United States cases that the Latin phrase forum non conveniens is potentially misleading as a description of the current United Kingdom and United States doctrines to which it is commonly applied: see, e.g., Spiliada [62] ; Loftus v. Lee [63] . Even to one with some acquaintance with Latin, "conveniens" (lit. "coming together", i.e., conformable, consistent, appropriate) is likely to suggest "convenient" (Latin: "commodus") whereas both United Kingdom and United States doctrines, while taking account of convenience, also stress the importance of consideration of the ends of justice: see, e.g., Spiliada [64] ; Koster v. (American) Lumbermens Mutual Casualty Co. [65] . Perhaps even more important, the Latin phrase is apt to suggest that the test embodied in those doctrines is directed to whether the court in which the proceedings have been commenced is inappropriate or unsuitable. In fact, as the broader doctrines have developed on both sides of the Atlantic, the test to which they refer has increasingly become whether there is any foreign tribunal which either is the appropriate (in the sense of the "natural") tribunal or is (or, in the case of the United Kingdom, is "clearly") a more appropriate tribunal for the hearing of the particular case. In other words, the test in the United Kingdom and the United States seems increasingly to be one of "forum non convenientissimum". The use of the phrase forum non conveniens is, however, so well established as the designation of the grounds upon which the continued exercise of jurisdiction should be refused under modern doctrines that it would be futile to attempt to proscribe it. The preferable course is, in my view, to use the phrase to refer indifferently both to the less rigid approach to traditional doctrine which would recognize jurisdiction in the ordinary case to dismiss or stay proceedings in favour of a tribunal in a foreign country if the local court is a clearly inappropriate forum, and to the broader United Kingdom and United States doctrines which state the applicable test in terms of whether the foreign tribunal is a more appropriate forum. I shall hereafter use the phrase in that general sense while, on occasion, referring to the United Kingdom and United States doctrines as the "broader forum non conveniens" doctrine.

[129]

Notwithstanding the fact that the desire for judicial comity has played a significant role in the acceptance of the broader forum non conveniens doctrine in England (see, e.g., The "Abidin Daver" [66] ), there are significant differences between the United Kingdom and United States versions of the doctrine. In the United States, the tendency has been to see the doctrine as essentially concerned with convenience: "the central focus of the forum non conveniens inquiry is convenience dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice": Piper Aircraft Co. v. Reyno [67] . Convenience is seen as involving two distinct aspects: private convenience from the standpoint of the litigants (e.g., relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of a view of the premises if that be appropriate and all other practical matters that make trial of a case easy, expeditious and inexpensive) and public interest convenience in the sense of convenience of the particular court in which the action is brought (e.g., the workload of its members and the state of its calendar) and of the overall administration of justice (e.g., the need to help courts avoid conducting complex exercises in comparative law and the danger that there would be an increased flow of litigation into the United States and further congestion of already overcrowded court lists). See, e.g., Gulf Oil Corp. v. Gilbert [68] ; Piper Aircraft [69] and the helpful discussion in Professor David Robertson's "Forum Non Conveniens in America and England: "A Rather Fantastic Fiction" ", Law Quarterly Review, vol. 103 (1987), 398, at pp. 400-409. In the United Kingdom, the convenience of particular courts or of the overall court system has not been propounded as a basis for a refusal to exercise jurisdiction. The underlying principle has been seen as requiring that regard be had to the interests of the parties and the ends of justice: see, e.g., Spiliada [70] . In this, the United Kingdom doctrine conforms more closely with traditional common law principle than does that of the United States. The differences between the respective doctrines is perhaps best illustrated by the fact that the forum non conveniens objection can, in at least some United States jurisdictions, be taken by the court itself (for its own protection) against the wishes of the parties whereas in the United Kingdom it would seem, at the present stage of development of the doctrine, that the objection must be taken by a party to the litigation.

[131]

Comparison of the United Kingdom and United States approaches leads me to conclude that, if a broader forum non conveniens doctrine is to be accepted in this country, the model should be that which was established by Spiliada as the law of the United Kingdom. The essential difference between that model and my understanding of traditional principle in this country lies in the actual test for determining whether proceedings should be stayed or dismissed on forum non conveniens grounds. Under traditional principle, that test is whether a continuation of the proceedings would be vexatious and oppressive by reason of the inappropriateness of the local court. For the reasons which I have explained, that test will be satisfied if the defendant establishes that there is an available and appropriate tribunal in some other country and that the local court is a clearly inappropriate forum in all the circumstances. In the United Kingdom model, that test is whether there is an available foreign tribunal which is the "natural", or clearly a more appropriate, forum. Apart from that difference in the actual test, the broader United Kingdom forum non conveniens doctrine generally accords with my understanding of traditional principle. In particular, the discussion of relevant "connecting factors" and of the treatment of "a legitimate personal or juridical advantage" to the plaintiff in Lord Goff's speech in Spiliada [71] and the last paragraph of Lord Templeman's supplementary comments in that case [1] offer assistance as to the approach to be adopted under traditional principle as well as to the exercise of the discretion under United Kingdom doctrine. It follows that, on my view of the modern content and practical operation of traditional principle, the question whether the United Kingdom doctrine should be accepted in this country can, for practical purposes, be stated in terms of whether the rule that, in a case where there is an available and appropriate foreign tribunal, proceedings will, in the absence of exceptional circumstances, be stayed or dismissed as vexatious or oppressive if the local court is a clearly inappropriate one, should be extended to embrace any case in which it appears that the available foreign tribunal is the natural or more appropriate forum. So stated, the practical impact of the answer to the question is confined to those probably rare cases in which an available foreign tribunal would be the natural or a more appropriate forum but in which it has not been demonstrated by the defendant that the local tribunal is a clearly inappropriate one. Even when the practical significance of the answer to the question is acknowledged as being so confined, the question itself remains a fundamental one of not inconsiderable importance.

[139]

Some of the above policy considerations (e.g., the workload of judges) are not, however, of the kind which are usually taken into account by Australian courts in formulating principles of law. More important, policy considerations do not all point in the one direction. The desirability of a plaintiff bringing an action in the most appropriate court does not obliterate the undesirability of further expanding the scope of a discretion to refuse to exercise competent jurisdiction. Apart from considerations of principle, any further expansion of that discretion is likely to lead to increased uncertainty for litigants and more litigation about where to litigate. The force of the argument based on public interest convenience is difficult to assess in circumstances where there is nothing before the court to suggest that there would be more than a small number of actions brought in this country which would survive the traditional test but which would nevertheless have been more appropriately brought in some foreign tribunal. The strength of the appeal to judicial comity is also difficult to assess in circumstances where some leading western countries, particularly in relation to actions by their own residents, decline to observe even the judicial restraint shown by common law courts under traditional doctrine: see, e.g., Professor Friedrich Juenger, "Judicial Jurisdiction in the United States and in the European Communities: A Comparison", Michigan Law Review, vol. 82 (1984), 1195, esp. at pp. 1204-1205. Moreover, if one turns from what is praised as judicial comity to what is condemned as judicial chauvinism, it seems that the broader forum non conveniens discretion is liable to bring with it the notion that "[c]itizens or residents deserve somewhat more deference than foreign plaintiffs": see Piper Aircraft [6] . The effect of the adoption of that approach in Piper Aircraft was concisely identified by Stevens J. [7] (with the concurrence of Brennan J.) in dissent as being that "Pennsylvania was not a convenient forum in which to litigate a claim against a Pennsylvania company that a plane was defectively designed and manufactured in Pennsylvania". At least, any judicial chauvinism which might, in earlier times, have been implicit in traditional principle was well intentioned towards the foreign plaintiff.

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