1 This proceeding was brought in the Supreme Court of Victoria by writ issued on 24 November 2005. By her statement of claim, the plaintiff alleges that, at different intervals over some years, she and the defendant lived in a de facto relationship as man and wife; and that between the years 1985 and 1998, a period covering those intervals, the two enjoyed what the amended statement of claim describes as "a committed personal relationship." They were then residents of Western Australia. By the amended statement of claim, the plaintiff seeks an order that the defendant pay to her, pursuant to an equity of acquiescence, the sum of $195,000, or such other sum as to the Court seems just and equitable. She further (or in the alternative) claims an order that the defendant pay her $700 per month for 10 years by way of contribution to a specified mortgage.
2 The equity of acquiescence arises, so the statement of claim alleges, because by the plaintiff's actions the defendant has been unjustly enriched; and that unjust enrichment has resulted from actions - of which the defendant knew and in which he acquiesced - undertaken by the plaintiff in reliance, to the defendant's knowledge, on a promise made by the defendant to the plaintiff that he would make provision for the plaintiff's financial security. He was to do this by (a) subdividing for her benefit a farm owned by him; (b) leaving to the plaintiff in his will a life interest in that farm together with the fee simple ownership of a house owned by the defendant in the United States; and (c) discharging a mortgage over a property owned by her in Harold Street, Mount Lawley, Western Australia.
3 These promises, according to the plaintiff, induced her to take the primary responsibility for housekeeping at the several households maintained by the couple, and to make a substantial financial and non-financial contribution to the improvement and conservation of the properties and to the financial resources and welfare of the defendant. She also, she claims, decided on the basis of the promises that she did not need to invest in her own long term future; and she therefore refrained from doing so.
4 The further or alternative claim is for an order that the defendant pay to the plaintiff the sum of $700 per month for a period of 10 years. She alleges that, after the two separated, the defendant promised her that he would contribute for a period of 10 years to the mortgage on the Harold Street property or on any property which, having sold that in Harold Street, the plaintiff subsequently purchased. As things happened, a replacement property was purchased - in Peel Street, Kew, Victoria. The plaintiff now claims that she acted to her detriment in selling the Harold Street, Mount Lawler, property, and that it is unconscionable that the defendant be permitted to resile from the second promise.
5 The amended statement of claim alleges that each of the two promises upon which the plaintiff relies were made in Western Australia, and that, with the exception of the Peel Street purchase, the actions taken in reliance upon them were taken in that State. For his part, the defendant puts forward these circumstances to found an application, made by summons dated 18 January 2006, for an order that the proceeding be transferred to the Supreme Court of Western Australia.
6 The power to make such an order is conferred by the Jurisdiction of Courts (Cross-vesting) Act 1987. As Street CJ explained in Bankinvest AG v Seabrook[1], that Act forms an integral part of a legislative scheme, adopted by the Parliaments of the Commonwealth, the States and the Territories, to confer on each of the Federal Court, the Family Court and the eight Supreme Courts, an Australia-wide jurisdiction "and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another." The purpose of the scheme was to require "the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon considerations of the interests of justice."[2]
7 A court has a prima facie duty to exercise its judicial power whenever its jurisdiction has been regularly invoked. The cross-vesting scheme does not displace this duty. Now overriding it, however, is a statutory requirement that such jurisdiction not be exercised, and that a proceeding be transferred to another of the courts exercising the Australia-wide jurisdiction to which Street CJ referred, whenever it appears that such a transfer is dictated by the interests of justice: BHP Billiton Ltd v Schultz[3].
8 The relevant legislative provision is, in its essence, simple enough. Where, as here, the question is one as between two Supreme Courts, s.5 of the Act relevantly provides that this Court shall transfer to that other Supreme Court a proceeding pending in this Court if it appears to this Court to be in the interests of justice that the proceeding be determined in the other Supreme Court.
9 This is to be contrasted with the position which arises when a court is asked to grant a stay of proceedings, and thus to put aside its prima facie duty to exercise its jurisdiction, because - although it is the forum selected by the plaintiff - another forum is clearly more appropriate; and the selected forum is, as such, therefore clearly inappropriate: this is known as the "forum non conveniens" ground for declining to exercise jurisdiction otherwise regularly invoked.
10 Such an application was made in Oceanic Sun Line Special Shipping Co Inc v Fay[4]. In that case, Deane J referred to a basic tenet of Australian jurisprudence: that, where jurisdiction exists, access to the courts is a right, not a privilege.[5] It therefore cannot be withdrawn unless the chosen forum is "clearly inappropriate".[6] The emphasis is plain. A party who seeks to interfere with a plaintiff's access, regularly invoked, to its chosen forum, has the burden of convincing that forum that it should nevertheless refuse to do what would ordinarily be its duty.
11 So it is in forum non conveniens cases. This is to be contrasted with litigation in which the issue is whether, because the interests of justice so require, there must be a transfer pursuant to s.5 of the Jurisdiction of Court (Cross-vesting) Act. The point is emphasised by s.5(7) of the Act, which provides that a court may, of its own motion, effect the transfer of a proceeding from that court to one or other (as the justice of the case indicates) of the nine remaining courts upon which the Australia-wide jurisdiction has been conferred.
12 In these cases, the question of the burden of proof gives rise to different considerations. In BHP Billiton Ltd v Schulz, Gummow J referred to the description of s.5 given by the Attorney-General for New South Wales in the second reading speech on the bill for what was to become the Cross-vesting Act. After noting that, if proceedings are commenced in an inappropriate court, the courts will have power to transfer those proceedings to the court which is most appropriate, the Attorney said that the purpose of the section was "to ensure that proceedings are always dealt with by the most appropriate court", Gummow J continued[7]: