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Australian Practice -- Note from the Australian Delegation in Relation to Forum Non Conveniens

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Domestic Practice

Domestic jurisdiction in Australia is rather complicated. It must be remembered that in Australia, as in other common law countries, jurisdiction depends on lawful service of the originating process upon the defendant, either personally within the jurisdiction or by statutory authority under rules of court modelled on the English RSC Order 11.

Jurisdiction of federal courts is Australia-wide. The jurisdiction of State courts is at common law confined to the territory of the State. However, under the Service and Execution of Process Act 1992 a writ issued out of any State court can be served upon a defendant anywhere within Australia or its external territories. Since there are no connections required with the State of issue, provision must be made for the declining or transferring of jurisdiction in cases where the plaintiff has issued process in an inappropriate forum.

For these purposes a dictinction must be drawn between process issued out of a Supreme Court and process issued out of an inferior court. In the former case provision is made for the transfer of proceedings under section 5 (2) of the Jurisdiction of Courts (Cross-vesting) Acts 1987, a co-operative federal-state scheme whereby State and federal superior courts can exercise one another's jurisdiction and transfer pending matters to each other. The provisions of section 5 (2) are rather complex and are set out and discussed in Nygh, Conflict of Laws, 6th ed. at 88 to 93. In the case of proceedings instituted in an inappropriate inferior court, provision is made in section 20 of the Service and Execution of Process Act 1992 for the staying of such an action on the ground that another court is the appropriate court to determine the matter in dispute. Section 20 (4) sets out a number of factors to be considered. They are found and discussed at pp. 45 and 46 of Nygh, op.cit.

It may be noted that the procedures have different consequences. In the case of a superior court action, the matter is transferred with the result that the action changes venue but need not be recommenced. In the case of an inferior court action, the cause is stayed permanently which for practical purposes means it is discontinued and the plaintiff must start again in the appropriate court. Although the jurisprudence is somewhat confusing, and at times conflicting, it may be fair to say that in general courts are reluctant to deny jurisdiction to a plaintiff if as a result that plaintiff would be deprived of a real advantage.

International Practice

There are no statutory provisions in relation to international litigation. The Australian practice in declining jurisdiction differs from that in the United States and England. The High Court of Australia rejected the Spiliada test of looking for the "more appropriate forum" in Oceanic Sun Line Special Shipping Co. Inc. v. Fay (1988) 165 CLR 197. Instead, it developed the "clearly inappropriate forum" test in Voth v. Manildra Flour Mills Pty Ltd. (1990) 171 CLR 538. Basically, that test requires the court only to satisfy itself that the forum chosen by the plaintiff is not "clearly inappropriate" i.e. imposes a burden on the defendant that is substantially out of proportion to any benefit to be gained by the plaintiff in that forum. The fact that the forum chosen by the plaintiff is not the "natural forum" e.g. because the cause of action arose elsewhere or the defendant resides elsewhere is not sufficient to decline jurisdiction. Nor is the fact that there is another forum which is more appropriate for the trial of the action. For further details and explanation, see Nygh, op. cit., at 102-108. Although the High Court in Voth v. Manildra Flour Mills Pty Ltd. did decline jurisdiction by applying the above test, other courts applying the Voth principle have been extremely reluctant to decline jurisdiction.

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