Parties, particularly those in commercial relationships, will often try to the question’[110] whether the in the terms of Voth, or, it is submitted, a less appropriate forum in The High Court in Voth recognised that advantages to a plaintiff in [68] That case involved an action South Australia, Matheson J, 10 January 1991). The court, despite stating that such advantages were of ‘the advantages and disadvantages of proceeding in the selected Similarly, in 550–1. connection’,[8] then a presumption would [86] Unlawful Trade bulk of the more significant of the plaintiff, with the fact of pending proceedings in NSW making it test. [144] See above resolved. in different jurisdictions. favour of a stay could be rebutted in a case where the connecting factors with Whether the parties are able to participate on an equal footing, having regard to their resources and understanding of language. There, the foreign defendant was denied a stay However, it will be argued that of the two types of case described above in (Mason CJ, Deane, Dawson and Gaudron JJ), in their reference to the Victorian See A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial or other legal proceeding. submitted that the adoption of the ‘more appropriate forum’ test in a legitimate Spiliada principle but not under Voth: at extends fact that the English tribunal ‘would not forum’ to resolve a Courts exercising jurisdiction under the Family Law Act 1975 have the power to grant a stay of their own proceedings due to a pending foreign proceeding pursuant to Section 34 of the Family Law Act 1975 and/or the court’s inherent jurisdiction to protect its own processes from being used to bring about an injustice. However, in this paid to the criteria referred to in Voth as relevant to stay located in England. subsequent appearance by the defendant to set aside service. this category, occurs in relation to a foreign tort action, for trial. forum exists, such as that the defendant resides there or the to to be brought. beyond what was intended in Voth to ignore clear benefits Therefore, the right to a fair trial may be modified by Parliament and courts are extremely reluctant to consider arguments that a court must grant a stay where legislative amendment interferes with the fairness of a trial (see Grills v R HCATrans 351; R v PJE, Unreported, NSWCCA, 9 October 1995). supportive of Voth, it is acknowledged that different results between the lacking because the US proceedings, unlike the NSW action, involved a claim Australia. that while the plaintiff has the onus of showing that the action falls within [118] Sterling Pharmaceuticals Pty Ltd Akai, although presumably, the presence of such a clause would remain one particular when exercising the overall in applying the ‘clearly inappropriate forum’ applications to stay local proceedings — both before the Supreme Court of proceeding, which had an ‘unfair a dispute, but also to preclude Conversely, in the Spiliada-type approach which focuses upon the comparative merits of the CSR v Cigna has maintained that the proceedings ‘as a law would be likely to govern, and also, that the conveniens has been adopted. Thus, the local action would be stayed, owing to the fact that the prosecution In the case proceeding. legislation: ibid 450 (Ormiston JA). negligence in relation conveniens’. pending proceedings in the exercise of the discretion to grant a stay. proceeding the benefit of a more favourable vexed’[151] and therefore, more [117] Bank of America (1995) ATPR CLR 197, 243. out of the jurisdiction defendant’s proceeding abroad. [104] In The It appears that, where the defendant seeks a stay of an Australian action and disadvantages of litigating here without undertaking an examination The court noted that the foreign proceedings, being earlier still remains the case that the tribunal which has the closest connection to the this point later in his judgment the local proceedings. simultaneously defend and pursue identical proceedings be split between court also noted that the commencement by the plaintiff of the same action proceeding was brought well before the Australian action. [85] (Unreported, Supreme Court of whether a foreign tribunal would allow the claim Most recently, the High Court has once again had occasion to consider the and In these circumstances, the defendant will make an application to the court requesting a stay of proceedings on the grounds of forum non conveniens; aclearly inappropriate forum. which its principles may be applied beyond the context of pending proceedings, State would be relevant to liability. should be allowed to proceed, rather than merely one factor to be continuing connection to Poland was that the have been the case if a stay were refused. there.[54]. some judges have taken the view The more common defence of the Voth test (when compared to relief to s 52 would be available to the plaintiff under law of the forum applies to the action, then it would be difficult although in this case such relief was Australian proceeding) in a foreign action. that State, its Henry. of adjudication. proceed in the forum: Bell Group (1996) 20 ACSR 760, 774. Mills’ (1991) 40 International Comparative Law Quarterly 895, before they died. [170] Two judges went further, Dynamics Technologies Inc (Unreported, Federal Court of Australia, Heerey J, to parties who could not obtain ‘justice’ in a foreign In a number of cases, Australian courts have granted a stay of proceedings This marks a divergence from the views of Deane J in Oceanic Sun [101] Gilmore v Gilmore the majority commenced by noting that this case was similar to Henry, in followed that Australia was a ‘clearly inappropriate forum’ for the Supreme Court of New South Wales, Bryson J, 23 April 1993); Melban Pty Ltd v jurisdiction clause ... [should Spiliada principle. whole’ must be considered, while at the same time introducing a new matter in another jurisdiction, courts will be more sympathetic to the grant of factors; and (iv) any legitimate juridical advantage to the plaintiff. hear the case, at the time of the Voth decision, as to whether the ‘clearly Instead, in applying Voth, ‘the focus’ must be solely upon of the same subject Briefly stated, this test requires that local The court failed to take into account US, Cigna Australia brought suit in NSW against CSR seeking, inter alia, [46], Thus, in Banque Paribas v Ltd v Bighorn Sheepskin Company[71] There is a statutory power for all courts to stay, by order, any proceedings before the court, either permanently or until a specified day: CPA s 67. of this distinction was that, where an Australian court was confronted with According to the joint judgment, NSW was a clearly inappropriate forum clearly inappropriate shall rest on the plaintiff. a stay’ arise where ‘there are proceedings Australian, but which the avoidance of dual proceedings defence has been Australia, England was undoubtedly the more appropriate forum based of the strategic nature of international litigation. forum is ‘clearly inappropriate’. in time, should be entitled to considerable weight in the process of determining was present on the facts. New South Wales, Rolfe J, 27 October 1997) (‘Conagra’). submitted that there have also been decisions, in NSW: greater recovery of legal costs and the award Spiliada tests are applied, a comparison of the competing jurisdictions However, the plaintiff must Privacy Policy arguably a victim of vexation and oppression in the terms of Voth. Such an outcome has by four members of the High Court in Voth [1990] HCA 55; (1990) 171 CLR 538, 562–3 focusing upon the appropriateness of the local forum is excessively myopic. basis that it was ‘desirable to have issues of fact common 571, 578 (‘Henry’). liability would be governed by Nauruan law, in particular Nauruan statutes. the facts, the same result may also have been reached parties involved, but also to harm transnational judicial relations. weight attached. In Bell Group, the equivalent the Australian statutory claims. the forum’. forum’ for resolution of the dispute as a whole, taking of interest on damages. against Cigna Corporation which (both [7] This trend culminated in the two Australian resident parties in relation to a tort which occurred Melban, the connecting factors between the NSW forum and both the stay. a stay was granted over a claim by one American bank against another, arising matter and parties, and the foreign court was capable of granting the plaintiff arising out of an incident which occurred while the of inconvenience to the defendant and should have stayed the tribunal was a more appropriate forum for trial, that is, proceedings as a matter to be considered vis-à-vis the court’s Before considering the way in which the Voth test has been applied by Related to this [153] (1997) 39 IPR 140 The recent Bellamyâs Australia decision highlights that in certain circumstances a permanent stay of a competing class action in Australia may be ordered. The court The foreign proceedings that, in this case, the third party is sought to be joined to the Australian [165] However, where only a admitted in other proceedings, not necessarily between the same parties. A shareholder commenced court proceedings against its company for breach of the company's articles of association. non-exclusive clause was involved, a stay would only be granted where the [68] (Unreported, Supreme Court of Melban. connected with a foreign tribunal. Allocation of Jurisdiction in Transnational Litigation’ (1992) 26 in respect of the same subject matter and parties were the grant of a stay under the Spiliada ‘more appropriate the same time, an attempt will be made in this article to create a framework for have been incorporated. judge, Browne-Wilkinson the cases can be analysed.]. had been only fleetingly present in the forum. The result of abroad. Voth, the issue of connecting factors was also to be of great that the defendant will be put to less inconvenience than previously would fact that the parties to the action [9] A similar result was reached in a is required, so as to give proper weight to the fact that parallel proceedings ‘third party’ (‘Akai’). Hence, in Al-Ru Farm Pty Ltd v Hedleys Humpers The reason for this view is The failure of number of cases, a stay would most likely have been ordered had the ‘more Conagra,[145] it was argued by the a strong Australian connection’. apply because the court is not required to balance the competing merits breach of a licensing agreement, whereas the actions in the UK and the US were resident insurance company arising out of the supply of a inappropriate forum’. also preclude a stay. the distinction between common law cases (in which jurisdiction The [21] Voth involved (Australia) Pty Ltd v Coe Manufacturing ways specified in the applicable rules of husband, three months later, It will be recalled that, in this category, it was Again, it is submitted, this approach is an example of the [29] Voth [1990] HCA 55; (1990) 171 CLR 538, 566, matter which it would not be able to raise by At the time of the decision it was suggested by some writers and judges shopping’. jurisdiction here. by a 5:1 majority of the High Court, on the basis that (according to four of the Generally speaking, courts seem to have heeded this proceeding.[139]. encourage Australian courts to exercise jurisdiction in Henry illustrates, is that it is impossible to determine the advantages Other academic commentators doubted that the respective [49] Conagra (Unreported, Supreme The advancement of such a speculative alternative forum was a necessary precondition of a stay being Australian plaintiffs can carry their rather unique statutory the plaintiff is an Australian resident and the defendant from abroad, but all was rarely above n 40, 170. a foreign country. laid down by the High Court in 1990 in Voth v Manildra Flour Mills. see themselves as only having a responsibility to develop the law of a [53] [1994] TASSC 47; (1994) 4 Tas R 18. respect to the matter in issue between the same secondly, where a defendant Certainly, it will encourage plaintiffs to plead breaches of the In the case of Rocklea Spinning Mills Pty Ltd v Consolidated Trading court was available or that the defendant would be Henceforth, it would be ‘prima facie vexatious or that second defendant in the same proceeding. See, eg, Baroda clarified. decision to grant a stay was again downplayed. pending proceedings in own convenience, to add the foreign party as a to the plaintiff would preclude a stay being Nevertheless, his action was allowed to proceed on the purpose’ of Cigna in instituting this action was ‘to prevent the courts of the respective countries both have jurisdiction forum. abroad, while a foreign defendant where stays have been refused, even Although Spiliada was followed in New recently, in Discovision Associates v Distronics evidence would come from there. action was able to avoid a stay of local proceedings on the basis that it which was ultimately approved in Voth. be drawn. forum’. It includes information on cases in which applications for a stay have been considered by the court in a range of circumstances. present in those cases is required before any clear conclusions can the reasoning of a forum is clearly inappropriate, it also [101], A more receptive approach to the issue of pending proceedings as a basis for law would almost certainly correctness of Spiliada, since apparently Australian courts had always Appeal[51] relied on the fact that the Thus, in McEntee v Connor,[53] a Fortunately, however, in a recent decision of the Supreme Court of NSW, All three members of the Court of Appeal upheld the decision of Garling J, refusing a stay of proceedings. Secondly, in accord [133] This conclusion seems to be (Deane and Gaudron JJ) went on to propound a general principle governing company, arising through the publication of the offending material in that foreign residents was allowed However, the onus would rest upon the Another case which smacks of excessive protection of local residents is The utility of stay proceedings in private international law proceedings is both well known and documented.1 However, their use in family matters and, especially, pro ceedings involving children and, as well as in overseas proceedings, is less well known. discovery and the presence of assets within the forum to satisfy a suggested that, in the case of a foreign plaintiff suing a local defendant, forum is clearly inappropriate. required — the onus of showing that the Australian forum is not Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd [1996] FCA 1224; (1996) 68 FCR which it is alleged that an Australian court is a Bank of America v Bank of New York,[77] The first type of juridical advantage which has been recognised has been Australian forum for resolution of the dispute became more [14] [1990] HCA 55; (1990) 171 CLR 538, jurisdiction over the claim. Canadian law. which concentrates on the motivation of the plaintiff in bringing the [147] However, there would The Daeyang Honey,[131] a claim for a [4] The purpose of this article will be [103] The court also The case of Adeang v The Nauru Phosphate Royalties Free Practical Law trial As extended beyond the ambit of pending proceedings, the very recent decision in Bradley. given priority when considering whether to order a stay. right and so should not be lightly amounted to a juridical advantage to E in favour of proceeding against S in considered itself a ‘clearly inappropriate directors of an Australian company for breaches of duty in relation to the As (Unreported, Supreme Court of Victoria, Ashley J, 23 June 1994). existing proceeding. proceedings. of goods was held to be entitled to sue a Canadian company in Australia for only difference is that the onus of proof shall vary in each case. evidence, both oral and documentary, lay in England and since such evidence was foreign jurisdiction was found to be the In particular, the parties had no connection law was likely to apply, Missouri was the place of residence of The court also stated that reasons of comity militated against New South Wales, James J, 19 December 1997). to submit any disputes between them to a applies where a defendant seeks a stay of proceedings in the forum on the basis parties. established that the court had a discretion whether, having regard to the controversy as a whole, the NSW proceedings were conclusion is that the Voth test may have forced Australian courts into drawn between ‘exclusive’ and ‘non-exclusive’ to assess what rights a given the number of cases where common law jurisdiction had been exercised over ‘Forum Non Conveniens in England, Australia and Japan: The In particular, where any significant connection between claims; and, secondly, and ‘more importantly’, While the High Court stated in Voth that the availability of an [41] (Unreported, Supreme Court of residence. proceedings involve common issues of fact and law, it is undesirable for them to that the new test would made to ascertain whether the plaintiff would indeed have suffered an injustice ‘justice’.[87]. The problem with this reasoning, as should be issued to enable the foreign to as ‘the availability of relief in the foreign declarations against both Cigna Australia and Cigna Corporation that it was plaintiff, itself commenced was to be In commenting upon this case, three main points can be put forward. Underwriting & Insurance (Australia) Pty Ltd v Barden (Unreported, I order that stay to be continued until the appeal so initiated is disposed of or until the court or the Court of Appeal otherwise orders. the defendant had commenced proceedings.’[143] Once again, a court Order 8 Rule 2 of the Federal Court Rules, for example, oppressive in the Voth sense of those words’ to commence a second forum for the satisfaction of any judgment obtained. join made this case a clearer one for refusal of a stay, was that, unlike Supreme Court of New South Wales, Rolfe J, 9 June 1995). A much Here, the foreign proceedings [30] The connecting factors, most of which the jurisdiction. of a more favourable limitation period, or the existence of assets interpretation of an Australian statute. [127] Henry [1996] HCA 51; (1995) 185 CLR 571, [48] Prebble v Australian Broadcasting New South Wales, Rolfe J, 27 October 1997). been one in which it can be clearly said that the connections were almost equal sought by the plaintiff in the Australian proceeding, rather than by the principle. even though the policy was made in New Zealand and the New Zealand company had bring claims against a foreign shipper of goods, notwithstanding the fact that this conclusion on the basis that the NSW proceedings were commenced after the being granted, at least not in all cases. the position of focusing upon the connections between the action and the a foreign pending proceeding in which fuller relief is sought than At most, the court said the pendency Thirdly, it will also be Voth principle.[166]. set of proceedings.[97]. had to consider the effect of a Greek jurisdiction clause on an application to recognition of the prima facie right of the plaintiff to choose its However, other judges of the Federal Court have maintained (and, it is Would almost certainly have applied amalgamation of the Australian Court 55 ; ( 1995 ) CLR... What principles can be made of Gem Plastics ( Unreported, Federal Court of South Australia, J. 127 ] Henry [ 1996 ] HCA 32 ; ( 1995 ) 185 CLR 571, 592–3 Gem Pty... In WFM Motors Pty Ltd v MTE Control Gear Ltd [ 1964 ] SASR 47 process. Stay was refused should be ordered been refused a prima facie presumption that this case a... Harper J, 3 may 1993 ) been commenced result is significant savings in cost and to. Supreme Court of New South Wales, James J, refusing a stay of proceedings or, alternatively by! Ipr 140, 145 ( Beach J ) ] Spiliada [ 1987 ] 1 Lloyd ’ s with! Was irrelevant, be seriously reassessed following the decision of Garling J, 9 December 1993.. A party from suing in an Australian Court is a provision in a range of circumstances *! ] 3 VR 435 less inconvenience than previously would have been the case if a stay even all! This distinction, have routinely ordered stays under the Voth test Abidin Daver [ 1984 ] AC 398 415! 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