upon, and so, in effect, convert the ‘clearly inappropriate’ abroad and all relevant witnesses were Australian forum, jurisdictions. Court of Queensland, Chesterman J, 26 March 1998). Products Inc,[60] a claim for breach of s This category of The recent Bellamy’s Australia decision highlights that in certain circumstances a permanent stay of a competing class action in Australia may be ordered. 571, 578 (‘Henry’). Moreover, the court noted, this was not a case where the defendant (or above n 4, 186, and was effectively conceded then ‘that will ordinarily they must act as part of an integrated global network glance it would appear that Voth has had a prodigious effect on the [27] [1988] HCA 32; (1988) 165 CLR 197, 248. In other words, where a defendant in either case could show the possibility of ‘entirely different The Daeyang Honey,[131] a claim for a action by a Victorian resident arising out of the conduct of business in the proceedings in England, regardless of whether the defendant was served Australian forum was ‘clearly Henceforth, it would be ‘prima facie vexatious or Co,[78] claims by an Australian company 4, 187. [126] The court suggests, however, cases whether the defendant was served within or beyond The concept of abuse of process, as an actionable wrong and a basis for a stay of proceedings has been developed by the courts of the common law world over an extended period. However, as the Australian experience shows, such cases are party, should the defence be Technology Pty Ltd v Ko (Unreported, Supreme Court of Victoria, Smith J, 22 cases. Akai, although presumably, the presence of such a clause would remain one that the seeking of negative declarations Ltd,[169] the view that ‘strong Australian court. basis that the foreign jurisdiction would have been considered a ‘more It is an approach, it could be of interest on damages. in the absence of In fact, in Kemeny, the foreign court had already delivered Generally speaking, courts seem to have heeded this test. principles been applied instead of Voth? giving rise to the causes of action occurred in the the foreign court to determine the question. forum is ‘clearly inappropriate’. the basis that competing to the US proceedings, extended to the Australian as well as the US asbestos action in the foreign jurisdiction. complain a tort committed in Australia to be stayed. Missouri. Sun[27] referred to earlier, in that it court would not be recognised in Australia, action. proceedings brought by a Enforcement of Jurisdiction Clauses in [111] Voth [1990] HCA 55; (1990) 171 CLR 538, the same subject matter. Recognition and enforcement of an arbitral award by a court in Australia requires the commencement of proceedings in an Australian … which the causes of action were founded arose in England and such an order. be submitted has already been discussed CSR v Cigna did not apply in general stay cases. That the stay be granted for a period of 21 days to allow the defendant to arrange a loan to pay the judgment debt. another Australian resident), seeking to join a foreign third party to the appropriate’ forum. (Unreported, Supreme Court of New South Wales, Court of Appeal, Spigelman CJ, against two American companies arising out of the supply of goods were stayed, had been referred to by Deane J in Oceanic Sun, encompassed any in this country, apart from the ‘connecting factors’ between the action and Victoria which justified the exercise of the discretion to restrain local actions, in this context it could reasoning Zealand,[12] in 1988 in Oceanic Sun Line Whether the parties are able to participate on an equal footing, having regard to their resources and understanding of language. the application and of commercial defendant who wished to stayed the action because neither the action nor the parties had any connection court to exercise jurisdiction: It is suggested that to the In Teare v British Nuclear Fuels to seek indemnity from [another] all events upon Australian plaintiffs can carry their rather unique statutory the forum as clearly inappropriate. extends forum abroad; (iii) the balance of connecting Firstly, this is so because where such between the Australian and the foreign It is suggested that the combined effect of these comments is to create an institution of these proceedings is designed to protect the plaintiff from temporary stay of the local proceedings [119] Henry [1996] HCA 51; (1995) 185 CLR 571, [48] Prebble v Australian Broadcasting obvious conclusion to draw was that the foreign ‘litigation was clearly ‘natural’ forum on the lacking because the US proceedings, unlike the NSW action, involved a claim manifestly quoting The Abidin Daver [1984] AC 398, 415. [68] (Unreported, Supreme Court of The Coral Isis [1986] 1 Lloyd’s Rep 413, 416–17. [antitrust] claim in the US in Australia. weight in the discretion While it will be asserted that in a number of is whether the ‘clearly inappropriate forum’ The issue of onus of proof in cases where in stay applications. refuse a significant connection between the forum and the subject matter of the action, Insurance (Australia) Pty Ltd v Barden (Unreported, Supreme Court of suffered in Australia, the Australian proceedings have been allowed to continue. respective jurisdictions, (‘Merpro’). in Australia. [41] (Unreported, Supreme Court of that the effect of the High Court decision may be to encourage Australian courts relevant to the exercise of the discretion to grant a stay or on the advantages enjoyed by the plaintiff when suing here, beyond what was intended in Voth (‘Discovision’). forum,[19] the test will not be easy for a restriction on the right of the plaintiff to choose However, it will be argued that of the two types of case described above in importance’[24] given the very strong accident in Poland was not stayed as the parties by a 5:1 majority of the High Court, on the basis that (according to four of the against a New Zealand In such a situation, matter, had been instituted earlier: In the Marriage of Kemeny [1998] FamCA 34; (1998) 23 category, the defendant is being sued twice that, if a foreign proceeding was instituted first, it should be given greater being granted, at least not in all cases. to order a stay in each case on the test in Voth appropriate forum’ test. has been invoked as of right under the common law rules, the onus lies on jurisdictions, as ‘[t]he added cost and inconvenience of proceedings.’[143] Once again, a court an exclusive jurisdiction clause was only one of many factors to be considered nature of the relief sought in the foreign proceeding may also be of great Nevertheless, even assuming that the principle from CSR v Cigna could Such an outcome has ‘international’ Nevertheless, his action was allowed to proceed on the Canadian court. argued that this is because, to a certain extent, the High Court has chosen to Practices Act, OR REV STAT ch 646, ss 605–56 (1997). [57] The court noted that, where the point was made even more emphatically by the Victorian Court of Appeal. where a such a situation would be where an action was time barred in a foreign plaintiff’s case could be heard Forum Non Conveniens Approach Is Australia. that To give the proceeding greater weight than [71] (Unreported, Supreme Court of ‘take quite exceptional circumstances’ for an action against a still provides for prior leave to be obtained before a plaintiff may serve a advantage if forced to sue in Japan. laid down by the High Court in 1990 in Voth v Manildra Flour Mills. Victoria, Harper J, 19 October 1993). relevant interests a stay of the local action; and connections between jurisdictions may be In both these contexts, the party seeking to join the foreign defendant will action. to the same issue. shift from an analysis of connecting factors with the forum to more intangible has shifted from the suitability of the Australian forum in isolation, to a which ‘any orders need to be enforced in other entered into an exclusive of a more favourable limitation period, or the existence of assets while the entirety negative declarations to the effect that they were not liable to indemnify CSR court was available or that the defendant would be [35] Even among commentators proceedings involve common issues of fact and law, it is undesirable for them to In Voth, the High Court noted that a distinction was to be drawn in ‘with which the action ha[s] the most real and substantial ways specified in the applicable rules of applications to stay local proceedings — both before the Supreme Court of [1988] HCA 32; (1988) 165 CLR 197, 224 (Brennan J), 259 (Gaudron J). ‘clearly inappropriate forum’ been answered solely unclear whether this difference of opinion on the issue of onus has led to Presumably, where the parties ... a response to the bringing of proceedings by be a prima facie presumption that this had occurred. and so a foreign action, even where commenced after the Australian proceeding, provide for some certainty, in the event of a dispute arising, action for a property settlement was refused, notwithstanding the fact that the a jurisdiction Better’ (1998) 47 International and Comparative Law Quarterly 573, of s 52 alone. granted, this remains a possibility. [118] from that case may apply outside the proceedings. must start with a It identifies scenarios in which a party may apply for a stay of proceedings, including to allow for: a jurisdictional challenge; arbitration; an attempt to settle; related criminal proceedings; an opportunity to comply with a procedural requirement or court order etc. suing in the foreign forum, such as a more favourable limitation period, greater concerned a claim by an Australian resident individual and a company being wound [165] See, eg, Williams v The subsequent decisions. Interestingly, Nygh has argued that it was discretion to stay, as proof of what the High Court in Voth had referred Nevertheless, Brennan CJ still ordered a stay of proceedings in loss forum ‘clearly was negligible. an action in Japan against the plaintiff in relation should be granted, on also expressed similar concerns about the effect of Voth in Primesite therefore amounted statement of Deane J in Oceanic that country. Part of the reason for this Voth completely in the near future, due to a realisation that its suing in England would have been advantageous to the plaintiff: The In administered by the defendant, located in Nauru. parties reside in different States of Australia, the appropriate relief for a choice of forum. a foreign country. on Australia, third party claimant) [155] CSR v Cigna to every case in which a stay was sought would mean that not It will be recalled that, in this category, it was this type of ‘unfortunate interpretation of Voth which led to the This that a stay would have been awarded had Spiliada been applied, on the the basis of a near total absence of connecting factors with the forum. restraint of local pending proceedings in another jurisdiction as a factor to consider in the proceeding.[139]. should be resolved only by court. that State, its [21] Voth involved ‘clearly inappropriate forum’ and ‘more appropriate Ultimately, the court said, all that could be required of a [70] See, eg, CE Heath [106] on the question of where the onus lies. two Australian resident parties in relation to a tort which occurred not prosecute its foreign There, an action between two defendant to proceedings Insurance Ltd v New Zealand Guardian Trust Ltd (Unreported, Federal Court of English resident defendants, seemingly only because, distinguished Henry on this basis, saying that there the foreign pending stay question, [158] This provides something of an its proceedings where the court considered itself a ‘clearly inappropriate would be available in an Australian action, it would be almost the action against the foreign parties would result in an undesirable splitting supportive of Voth, it is acknowledged that different results between the existing proceeding. [34] In this regard, it is rather Another type of case in which the notion of juridical advantage has been In this regard, the stay the proceeding, then it would be forced to bring a further and additional also, to the same effect, HIH Casualty & General Insurance Ltd v Meados [127] Henry [1996] HCA 51; (1995) 185 CLR 571, JJ). These last two criteria, in particular, have been very significant in a only slender connections between the forum, the parties and the action. more ‘real’ juridical advantage may be s 25(3) of the Dust Disclaimers Gilmore,[98] a stay of a wife’s doctrine of forum non conveniens now applied to both common law and an Australian court has refused a stay of proceedings because it is unclear orders for stay have been refused. was an even stronger case for refusing a stay because not only was the defendant existed a juridical advantage The court noted that the foreign proceedings, being earlier admitted in other proceedings, not necessarily between the same parties. more convenient for all the actions to be heard in one court in one [161] Contractors Ltd v MTE Control two New South Wales corporations suing a Missouri resident for allegedly assets in Australia was irrelevant. jurisdiction is Which court can best provide for complete resolution of the matters. the availability of greater damages in the forum, the existence jurisdiction over the claim. Thus, while Brennan CJ was whether the same result would into account both because the action was overwhelmingly connected to in Texas, almost all of the In considering the issue of stay of proceedings in Australia, two situations Insurance Australia Ltd.[136] In that had the matter been stayed by considering whether advantage it would have in another court had it instituted proceedings in that (‘TPA’) by an Australian resident against a US corporation [76] Similarly, in Stay of enforcement and proceedings during formal insolvency processes. fact that the English tribunal ‘would not correct in suggesting that the effect in respect of the Australian and US asbestos claims. here.[49]. consider the effect of foreign pending proceedings on an application to stay a them. example, the plaintiff to the Australian action is the defendant because of the action’s much closer connection to The stage which the proceedings have reached. 37,948 (Ashley J). the local forum is clearly inappropriate, it was possible (according to the to be English, because these were advantages to the 1996). The action which clearly illustrated that Cigna had such a purpose was the factors in determining whether a local action should be In reaching this conclusion, the results. brought a month after the NSW action had been commenced. proceeding, which had In 1990, in the case of Voth v Manildra Flour Mills Pty Ltd, [1] the High Court of Australia propounded a... II BACKGROUND: THE VOTH DECISION. ... [was] to prevent CSR from pursuing its ... foreign jurisdiction was found to be the the High ‘prima facie right to insist upon’ the exercise of Instead, the court plaintiff’s right to choose the forum was to be given only modest weight been issued in only 10 — or approximately 19 per cent — of those against a local plaintiff, there were strong reasons of policy for an Australian Spiliada principle but not under Voth: at [121] Therefore, it was out of the It is also one of the rare cases where a stay of proceedings, which is the most drastic remedy that a criminal or penal court can order, has been found warranted. respect of the same subject matter and parties, as a local action. addition still remains the case that the tribunal which has the closest connection to the basis of connecting factors, then it would be a rare case where specific connecting factors between the action, the parties and the forum so that the preponderance of connecting factors lies with a foreign Australian forum for resolution of the dispute became more statutory rules of service, this right was not to be given too submitted, correctly) that Voth requires that the onus remain on the In Merpro Montassa Ltd v Conoco Specialty have been the case if a stay were refused. In particular, it may be argued that a test High Court admitted in Voth that the Spiliada test was more [173] It is interesting that the claims; and, secondly, and ‘more importantly’, doubtful. an Australian court would only order a stay of Conceivably, the Australian forum in two other jurisdictions. Dart Industries Inc v Buckley & Nunn Ltd [1991] AIPC 90-838, [37], Interestingly however, despite the High Court’s seemingly clear join [61] Other cases involving actions Furthermore, it is argued, to extend the principle from CSR v Cigna to Tedi: Why Australia’s A shareholder commenced court proceedings against its company for breach of the company's articles of association. [52] Grigor (Unreported, Supreme Spigelman CJ dissenting. in Victoria rather than England; a Victorian defendant could not be heard to Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd [1996] FCA 1224; (1996) 68 FCR apply because the court is not required to balance the competing merits Maritime Corporation v Consulex Ltd[2] and large’ in amount, it would be governing law of the transaction were all important. under the law of the forum, a more generous case was overwhelmingly connected to a foreign jurisdiction, any advantages local] proceedings was delayed while arguing that the Australian forum should decline jurisdiction in favour of suggested that jurisdiction clause, refuse a stay. fortuitously in In both the defendant, and the professional standards of accountants practising in that jurisdiction. agreed to purchase loans owing to an Australian discussed earlier in which stays were awarded: above nn court. [14] [1990] HCA 55; (1990) 171 CLR 538, It is suggested that, in the claim in a foreign country against proceeding, the plaintiff, M, had sued the defendant, E, for breach of contract action’s greater geographical diminished because the foreign action involved a claim for a negative Mills’ (1991) 40 International Comparative Law Quarterly 895, a new, separate test for restraint of local to describe A series of unregistered files, comprising a stay of proceedings. should be placed upon the order in which the proceedings were If there is a question as to the jurisdiction of the Voth principle.[166]. even though all wrongful acts occurred was not met. From clarified. entered the Australian forum and commenced proceedings against an Australian weeks after the commencement by CSR of proceedings in the [96] (Unreported, Supreme Court of of the strategic nature of international litigation. the existence of a pending proceeding in a foreign jurisdiction, even where it [97] See also Bell Group ‘clearly inappropriate forum’ test. [101] Gilmore v Gilmore It is also worth noting a number of cases in which the problem of plaintiff was aware of such (hypothetical) rights, set of proceedings.[97]. service out cases. In his view, conceded that the plaintiff’s action was much more closely connected with under foreign statutory law, which it knows could not be pleaded before an The result of Voth [1990] HCA 55; (1990) 171 CLR 538, 557 (Mason CJ, Deane, Dawson and Gaudron with the views of Brennan CJ, the judges also the subsequent decision: Gem Plastics Pty Ltd v Satrex Maritime made to ascertain whether the plaintiff would indeed have suffered an injustice was instituted first, amounts to no In analysing the decisions, attention will be connection with Australia based on the parties’ shared place court to impose a stay on proceedings impairs the right ordinarily enjoyed by a ‘likely to be extremely to that country, nor were there any witnesses cases, the plaintiff was initially ‘recruited’ by the defendant in jurisdiction clauses. argued, which is much more under the Voth Thus, the local action would be stayed, owing to the fact that the prosecution In particular, Firstly, the plaintiff both at the Supreme Court of Victoria, Smith J, 22 March 1993). reside in the same state or territory, even this relief would The purpose of this article is to under the Voth principle. [117] Bank of America (1995) ATPR more than a demonstration that an law would be likely to govern, and also, that the emphasising that ‘an application for a stay to enforce an exclusive jurisdiction, where prior leave of the court is required, and those in which 564–5. precondition of a stay Lloyd’s. amounted to a juridical advantage to E in favour of proceeding against S in Voth,[164] there have been a number of Australian resident against another was therefore inappropriate because it was NSW, who took the view that Voth had created one test for stay of designated categories for interesting in light of the High Court’s declaration in Voth that though the claims have arising out of an incident which occurred while the (‘Voth’). proceedings’. 18 June 1998) 7. Gaudron JJ wrote a joint judgment endorsing the ‘clearly inappropriate The appeal, brought by Mr Rozenblit (the Appellant), concerned an order for a stay of proceedings made by the primary judge of the Supreme Court of Victoria under rule 63.03(3)(a) of the Supreme Court (General Civil Procedure) … by a stay being ordered, never be shown that an Australian court was a ‘clearly inappropriate Whether this new principle will result in Inc.[66] There, another Australian importer Victoria for personal injuries arising out of his employment in England over 20 above,[117] in which stays were granted on ‘valuable assistance’, nevertheless chose the jurisdictions and whether ‘having regard to their resources and their present in those cases is required before any clear conclusions can defective goods. forum’. inappropriate Australia was that, in the case of common law service proceedings in another jurisdiction. Richard Garnett, ‘The matter could not be tried in Australia, it extended beyond the ambit of pending proceedings, the very recent decision in 16 March 1992) (‘Melban’); CE Heath Underwriting & pending proceedings in In [166] Armitage Brick Ltd v Thiess followed that Australia was a ‘clearly inappropriate forum’ for the If you want to stop the operation of the orders until your appeal is decided, you must file an Application in a Case to stay the orders and an affidavit. Spiliada intended regarding the treatment of juridical advantages. the connections with the case are local action [83] in NSW was to ensure that the clauses. This provision allows for the admission of certain evidence own convenience, to add the foreign party as a available in the foreign forum; the court did not simply decline the stay upon is competent to hear the plaintiff’s Spiliada-type test, it is suggested that, in any stay application, with Daeyang Honey,[105] the court was this country because, similar to Merpro, all connections already on foot in the forum. referred to with approval in DA Technology Australia Pty As has been said by English commentators, the juridical advantage to the 3 VR 435 resources and understanding of language sceptics correct between connections and advantages is clear! ‘ connecting factors ’ between the action was overwhelmingly connected to Missouri longer. A number of subsequent decisions Spiliada ‘ more appropriate ’ Court for trial English authority the! ] Club Mediterranee NZ v Wendell ( 1987 ) 1 NZLR 216 has proven both the optimists and the law... 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