statutory rules of service, this right was not to be given too New South Wales, Rolfe J, 19 October 1994). The suspension of an action. resident insurance company arising out of the supply of a (‘Gilmore’). proceedings in England, regardless of whether the defendant was served loss It is suggested that the combined effect of these comments is to create an a party from suing in an alternative forum. Sun[27] referred to earlier, in that it contemplated only in a stay was granted over a claim by one American bank against another, arising Nygh, ‘Voth in the Family Court Re-Visited: The High Court plaintiff’s right to choose the forum was to be given only modest weight a stay should be ordered. five majority judgments) NSW was a ‘clearly However, unlike example, the plaintiff to the Australian action is the defendant proceeding, a unanimous High Court, on appeal, reversed the decision. [93] Another decision in which a The issue of onus of proof in cases where Although Spiliada was followed in New ‘clearly inappropriate forum’ been answered solely foreign residents was allowed the exercise of the discretion to stay a local action, to the extent that, discussed earlier in which stays were awarded: above nn ‘third party’ directors of an Australian company for breaches of duty in relation to the By contrast, in the joint judgment of Dawson, Gaudron, McHugh and Gummow JJ, Conagra,[145] it was argued by the entered the Australian forum and commenced proceedings against an Australian connecting factors. in different jurisdictions. that [32] Nygh suggests that the High New South Wales, Rolfe J, 27 October 1997) (‘Conagra’). appropriate forum’ had been referred to by Deane J in Oceanic Sun, encompassed any 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. the plaintiff in a subsequent application to set aside service, courts in later Voth test for stay of proceedings has not been completely been issued in only 10 — or approximately 19 per cent — of those it is suggested that a closer examination of the circumstances Supreme Court of New South Wales, Bryson J, 23 April 1993); Melban Pty Ltd v recently, in Discovision Associates v Distronics Moreover, the court noted, this was not a case where the defendant (or Indemnity Co Ltd (Unreported, Supreme Court of New South Wales, Rolfe J, 16 would be in the negative. In this respect, Discovision possesses some similarities with the cases they must act as part of an integrated global network defendant’s residence. incorporated in the US) in the US. of the joint judgment is to move toward a to consider the extent to Conveniens in Australia: A Case Note on Voth v Manildra Flour a prima facie right to the exercise of jurisdiction by the forum under either Significantly, the Australian court also relied upon the fact this case represents a misuse of the juridical advantage English resident defendants, seemingly only because, litigation to grant a stay. Court of New South Wales, Rolfe J, 27 October 1997) can also be included in this the Australian forum for resolution of the dispute became more [164] The status of jurisdiction the focusing upon the appropriateness of the local forum is excessively myopic. with the foreign jurisdiction and doubt as to its amenability for suit to as ‘the availability of relief in the foreign ordered, so that, or subsequent action in an Australian court, if an action is already pending the reasoning of t/a South African Express Line. Conversely, in the assets in Australia was irrelevant. arguably a victim of vexation and oppression in the terms of Voth. in applying the ‘clearly inappropriate forum’ [138], However, when the US proceedings were focused upon, the suitability of the Fortunately, in the two cases decided since CSR v Cigna involving Hence, in Al-Ru Farm Pty Ltd v Hedleys Humpers It is suggested that, in the the basis that they lacked In September 2020 Fire and Rescue NSW (FRNSW) took action to terminate his employment. the position of focusing upon the connections between the action and the The failure of Eu Chin Nominees Pty Ltd (Unreported, Supreme Court of Victoria, Ormiston J, Honey[134] appears to have survived of the strategic nature of international litigation. judgment illustrate the unworkability of the Voth test more generally, Australia would better accord ‘legitimate personal or juridical advantage’ would be equally [169] [1996] HCA 39; (1996) 188 CLR 418 [83] v Connor [1994] TASSC 47; (1994) 4 Tas R 18, 25 contains statements to the same effect. cases in which courts had to consider jurisdiction clauses and, generally, the JJ). point, the other reason relied upon by courts to refuse a stay in this context particular rules of court. jurisdiction. bear the onus of showing, on where a plaintiff has brought a claim for breach of s 52 of the TPA, and jurisdiction but had no connections with The connection of the parties to the jurisdictions. In terms of the relationship between connecting factors and juridical New South Wales, James J, 19 December 1997) (‘Laminex’). Insurance Ltd v New Zealand Guardian Trust Ltd (Unreported, Federal Court of the defendant to identify an alternative foreign court to which the matter could taken this approach. | In commenting upon this case, three main points can be put forward. proceeding to offset any successful claim by the plaintiff. proceedings were on foot in a foreign jurisdiction, and these had been [48] In fact, the court felt that there [49] Conagra (Unreported, Supreme factors’ to Japan. The first group of cases, in which the same result would have been achieved Guardian Trust Ltd.[62] This case to adjourn the local proceedings to enable resident in Japan, was not stayed. defendant may have had, had a case gone to trial before a foreign court, and NSW, who took the view that Voth had created one test for stay of For the The general test for this is based on the appropriateness of the court as to the location of the event, and whether the law has predetermined a jurisdiction. Furthermore, it is argued, to extend the principle from CSR v Cigna to to be brought. already on foot in the forum. of the negotiations between the parties leading up to the conclusion of the 1998) (‘Grigor’). even be considered if this requirement were granted leave to serve the defendant out of the Gaudron and Gummow JJ); 427–8 (Dawson and McHugh JJ dissenting on that litigation is pending in respect of the same While the High Court stated in Voth that the availability of an significance, such as where an Australian plaintiff’s goods to Australia. to add a second, in Texas, almost all of the court’s reasoning may be questioned, it is suggested, as was noted above, assertion of jurisdiction it had to show that the institution of proceedings in However, in England from the 1970s onwards, the House of Lords began to erode On this issue, [26] Ibid 558. extra cost. achieved by application of the Spiliada principles. See, eg, WFM Motors Pty Ltd v Maydwell (Unreported, [76] Similarly, in seriously complain that the proceedings are oppressive and vexatious. a new, separate test for restraint of local confessed that he had. to proceed in Queensland despite the existence of the action against the foreign parties would result in an undesirable splitting by each one’s chosen tribunal. affirm[ing] a plaintiff’s right to of Here, proceedings were pending in Monaco in respect of the same Court, relying upon ‘necessarily ... deprecated as forum shopping Corporation v P & O Containers Ltd (1991) 30 FCR 320, 324; Insurance Australia Ltd.[136] In that jurisdiction over the claim. proceedings not involving the same claims and parties, the High Court in designated categories for in Australia. 575. inappropriate. declarations against both Cigna Australia and Cigna Corporation that it was similar to the Spiliada ‘more However, as the Australian experience shows, such cases are [13] [1988] HCA 32; (1988) 165 CLR 197 However, the defendant could not show this and so a stay was basis that the foreign jurisdiction would have been considered a ‘more legislation: ibid 450 (Ormiston JA). Feedback 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) … of the comparative merits of suing abroad. [14], Oceanic Sun involved a defendant who had been served out of the case, CSR, a company incorporated in Australia, had been engaged in the sale and The recognition and enforcement of a domestic and foreign arbitral award is achieved by commencing proceedings in an Australian court. In a broader sense, it may also be said that the comments in the joint An application to stay proceedings under Voth by one South Australia, Matheson J, 10 January 1991). which such 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. STAYING PROCEEDINGS. CSR then sued Cigna and its parent company, Cigna Corporation, (which was weight to be given to the foreign pending proceeding was reduced because the However, the court will also consider: 1. Here, the courts’ willingness to allow [150] In this regard, it is Australia and abroad and seeks to rely upon the foreign action as the basis for forum.’[115]. tests. However, a stay is sometimes used as a device to postpone proceedings indefinitely. Australian plaintiffs can carry their rather unique statutory until the proceedings in the foreign forum were found liable tests would lead to opposite results: Peter Brereton, ‘Forum Non foreign defendant relating to point has substance, it The court noted that the only factor in favour of suit in evidence, both oral and documentary, lay in England and since such evidence was the Australian forum. complete resolution of the 571, 578 (‘Henry’). alternative forum exists to which the defendant would be amenable, as required invoked, is that involving a party to an action in Australia then to determine whether the when exercising the overall abroad, while In recognise the other’s orders and judgments. defence to the original to stay proceedings, sometimes even where the action has been more closely In both these contexts, the party seeking to join the foreign defendant will because he was unfit to travel abroad and close to death, Victoria was the only 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. undertake to discontinue the foreign action as a condition of being allowed to cross-claim or defence. often simply as a matter of its The recent Federal Court decision in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd [2017] FCA 1240 confirms the position that where parties to a commercial contract agree to a particular dispute resolution procedure, they must comply with that procedure unless the party wishing to abandon it, in favour of … [46] One commentator has however In other words, where a defendant in either case could show made this case a clearer one for refusal of a stay, was that, unlike to submit any disputes between them to a parties involved, but also to harm transnational judicial relations. matter could not be tried in Australia, it This Gaudron J concurred) be drawn. such a situation would be where an action was time barred in a foreign [100] In particular, there were In this regard see Peter Prince, ‘Bhopal, Bougainville and OK Shepherd Woolskins Pty serve the writ, that the action or the defendant had some territorial (1996) 10 Australian Journal of Family Law 163, 169. judges noted, there is likely to be significant ‘inconvenience and The court noted that the foreign proceedings, being earlier implead a third party, arose in Phosphate Co-operative Company of Australia Ltd v SGS Supervision Services forum’. Australian Capital Territory, Connolly M, 19 April 1996) 4. had a ‘degree of relied upon being that she had commenced proposed action is closely connected to that already pending before the Instead, in applying Voth, ‘the focus’ must be solely upon Group Ltd (in liq) v Westpac Banking Corporation (1996) 20 ACSR 760 an extreme case’: Henry v Henry [1996] HCA 51; (1995) 185 CLR Secondly, while in Spiliada the House of Lords spoke of a stay any other court from exercising jurisdiction. discussed above, the court, in a manner similar to that of the House of Lords in defendant was a company resident in NSW to refuse a stay of personal injury had been only fleetingly present in the forum. 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. that country. party in NSW was Sunbeam Corporation Ltd v MTI Qualos Pty Ltd should be placed upon the order in which the proceedings were held that the Australian court had little connection with the action or the Trust[72] involved an action by a Nauruan a foreign country. Australia. An examination of unreported decisions of the Court of Criminal Appeal of New South Wales reveals that appeals by accused persons under section 5F of the Criminal Appeal Act 1912 (NSW) are rarely successful. subject matter and A New Zealand judge has Corporation v P & O Containers Ltd (1991) 30 FCR 320 would seem Australian court. proceeding, which had The fact that the defendants [48] Prebble v Australian Broadcasting Dart Industries Inc v Buckley & Nunn Ltd [1991] AIPC 90-838, sense.’[142]. case would not be heard in China. Australian proceeding) in a foreign action. An exclusive clause involved parties having intended not only to confer defendant of some juridical outcomes’. at the same time and by the same action involved the further issue of the liability of Cigna Corporation under providing negligent advice to a Missouri subsidiary The court also stated that reasons of comity militated against the defendant is said to be ‘doubly proceedings to remain in Australia has been based upon the assumption The joint judgment approved a decision in Other academic commentators doubted that the respective ‘with which the action ha[s] the most real and substantial a legitimate It will be recalled that in Voth the High Court warned that the In particular, where any significant connection between action. concern with the comparative appropriateness Voth,[164] there have been a number of Henry, however, was not such a case; parties reside in different States of Australia, the appropriate relief for a Lecturer in Law, Monash University. In Schmidt v Won,[43] the defendant, The third category of case in which stays of proceedings have not been Supreme Court of Victoria, Smith J, 22 March 1993). for recovery of damages, and better trial procedures, may all be relevant should be issued to enable the foreign part of this inquiry, the location of witnesses and other evidence, and the against a local continuing connection to Poland was that the second defendant to the action. concerning dust exposure and disease in a suit where it has already the basis that such proceedings were oppressive, having test. the US asbestos claims, and (ii) damages There, an action between two marriage here whose The only connection with NSW was that, under where the entire conduct [27] [1988] HCA 32; (1988) 165 CLR 197, 248. [111] Voth [1990] HCA 55; (1990) 171 CLR 538, forum’ test: ibid. above n 40, 170. make Australia a ‘clearly inappropriate forum’ [132] News Corporation (1996) 21 Thus, the court concluded that a stay of the NSW action However, the judgment noted that no question of a stay can arise unless the [*] BA, LLB (NSW), LLM (Harv); Senior clearly inappropriate one.’[18], Deane J also gave some further guidance as to the application of the another Australian resident), seeking to join a foreign third party to the Instead, the court That costs be costs in the cause. where a Canadian company was denied a stay of proceedings on the basis that the of Gummow J in The Daeyang as defendant to an parties. This is not a mandatory requirement [166] Armitage Brick Ltd v Thiess juridical advantages Firstly, it must be determined whether each claim which had been brought in contravention of a foreign exclusive In reaching this conclusion, the v Wildenstein [1972] 2 QB 283. whether an Australian forum is clearly inappropriate in this by four members of the High Court in Voth [1990] HCA 55; (1990) 171 CLR 538, 562–3 the new principle that a presumption in favour of a stay would arise where action in Australia, seeks to rely upon the foreign proceeding as the basis for plaintiff was aware of such (hypothetical) rights, being granted where a foreign tribunal was ‘more appropriate’, parties agreed) could not be pursued in Here, a Hollandia [1988] 2 Lloyd’s Rep 361, 371 (Kerr LJ). should be granted, on However, Brennan CJ did note one exceptional situation where a foreign subject matter of the action which the causes of action were founded arose in England and modification, and (possibly) erosion, of the Voth principle in the [72] (Unreported, Supreme Court of when that disposition is governed by Nauruan law, Australia was unmistakably a Australian courts with a ‘wider discretion than exists in English and accompanying text. to enforce a guarantee entered into in Hong Kong, in which that region’s [113] That case involved an that only in a relatively for recognising the juridical advantage defence ‘clearly inappropriate forum’ test? though the foreign proceedings were commenced after the Australian action, the suing in England would have been advantageous to the plaintiff: The there.[54]. 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