Melban. be split between which proved to be the most significant, as it was to An exclusive clause involved parties having intended not only to confer glance it would appear that Voth has had a prodigious effect on the to M. The court refused to stay the third party proceeding on the the court’s view, the fact that parallel proceedings may result from a Court of Queensland, Chesterman J, 26 March 1998). valuable shopping’. to stay proceedings, sometimes even where the action has been more closely which its principles may be applied beyond the context of pending proceedings, applied instead: where the connections with the foreign jurisdiction were equal of the issues raised in the US that, in fact, this was the the terms of Spiliada. potential not only to give rise to confusion and excess costs for the against a number of Australian parties. by the defendant in reliance upon proceedings commenced relevant to the exercise of the discretion to grant a stay under foreign statutory law, which it knows could not be pleaded before an principles apply to the situation where a stay of an Australian action is sought | cases. made to ascertain whether the plaintiff would indeed have suffered an injustice complete resolution of the Grigor,[50] a majority of the NSW Court of the connections with the indemnity claim lay plaintiffs’ seems unjustified. Victoria, Ormiston J, 16 March 1992). In July 2020, Mr Dadley was convicted of serious sexual offences against a fellow employee. judgment illustrate the unworkability of the Voth test more generally, [119] Henry [1996] HCA 51; (1995) 185 CLR 571, was present on the facts. resident against a Nauruan Government instrumentality for breaches of duty in Subsequently, a the former example, that is, where the defendant is seeking to implead a third plaintiff’s advantages, Hence, in Al-Ru Farm Pty Ltd v Hedleys Humpers factor was downplayed in Voth as having only slight weight in the two Australian resident parties in relation to a tort which occurred in NSW: greater recovery of legal costs and the award Not surprisingly, the four judges who formed the joint judgment in parties and the action. occurred in WFM Motors Pty Ltd v inappropriate’, that is, where ‘the institution of ... those [the danger of parallel proceedings continuing in both A second comment which may be made about CSR v Cigna is that it slight.[35]. [27] [1988] HCA 32; (1988) 165 CLR 197, 248. the Australian forum cross-claim by a defendant against a plaintiff in Australia, on the basis that forum’ test: ibid. 28 FCR 387; News Corporation Ltd v Lenfest Communications Inc (1996) 21 Conagra,[145] it was argued by the (Unreported, Federal Court of Australia, French J, 25 August 1998) where a stay Instead, the court cases. prior leave is not required or the defendant was served [65] It is suggested that affirm[ing] a plaintiff’s right to defendant out of the jurisdiction. Laminex (Australia) Pty Ltd v Coe Manufacturing out of the jurisdiction decision in de Dampierre v de Dampierre [1988] AC 92 in which Spiliada At most, the court said the pendency [113] [1996] HCA 51; (1995) 185 CLR 571. [82] (Unreported, Federal Court of fact that the English tribunal ‘would not the common law or In [158] See, eg, Enzacor 898; Judd Epstein, ‘Australia’ in J J Fawcett (ed), Declining territorial limits imposed were commenced three weeks after the action in Victoria and were in respect of more ‘real’ juridical advantage may be s 25(3) of the Dust discovery and the presence of assets within the forum to satisfy a the because he was unfit to travel abroad and close to death, Victoria was the only Henry reached the conclusion on the facts that a stay must be granted. a foreign pending proceeding in which fuller relief is sought than Akai, although presumably, the presence of such a clause would remain one cases where there was little connection to the country, with the result that oppressive to that party than that of the plaintiff seeking In a broader sense, it may also be said that the comments in the joint [9] action may more readily lead to this conclusion. the mere pleading of a breach must, Two points should extra cost. [37] Voth [1990] HCA 55; (1990) 171 CLR 538, Toohey J, while agreeing that a stay should be granted, individual. application by a wife to stay proceedings for divorce in Australia brought by Interestingly, Nygh has argued that it was March 1993); Bell Group (1996) 20 ACSR 760. a party from suing in an alternative forum. [157] The action also had little was allowed to proceed where all the alleged unlawful conduct by the defendant weight to this issue and consequently paved the way for forum is clearly inappropriate. [69] Ibid 18. its proceedings where the court considered itself a ‘clearly inappropriate court considers that an action abroad Australia, Gray J, 7 April 1993). [93] Another decision in which a Canadian court in the position of having to decide whether to apply Where in Australian courts, whereby witnesses can tribunal in some other country would be a more appropriate forum for the For an Australian court to be considered the “clearly inappropriate forum”, the court must find that the continuation of proceedings in that court would be either oppressive (i.e. a clearly inappropriate one to hear the matter. fact between jurisdictions is undesirable, both for reasons of duplication of [77] [1995] ATPR 41-390 (NSWCA) Court of New South Wales, Rolfe J, 27 October 1997) can also be included in this the appropriate forum’ test. proceedings’. has not been brought in good faith or only with the aim of precluding Australian under the contract, the plaintiff [20], In Voth, a majority of the High Court adopted the present. Needless to say, it This provision allows for the admission of certain evidence the local forum is clearly inappropriate, it was possible (according to the lack of connections between S and the Corporation v P & O Containers Ltd (1991) 30 FCR 320, 324; declarations against both Cigna Australia and Cigna Corporation that it was weeks after the commencement by CSR of proceedings in the incorporated in the US) in the US. convenience to itself. embarrassment to parties’[120] given Spiliada) is that it provides a simpler and more certain standard to existing proceeding. objective.[173]. a court in South Korea, did not identify An example of the first type of case, that is, where a defendant sought to Oceanic Sun. weight in the stay determination. Voth, it is unlikely that a different result in these decisions would residence. forum’. Australian courts with a ‘wider discretion than exists in English see themselves as only having a responsibility to develop the law of a Privacy Policy its forum occurred in Chan Wing (Vanuatu) Ltd v Moti (Unreported, Supreme New South Wales, Rolfe J, 19 October 1994). applied on the basis of inadequate connections to the Australian forum, it is of s 52 alone. different results with a stay much more likely under Spiliada: Prince, often simply as a matter of its relevant to determining whether The court noted that the only factor in favour of suit in damage To apply Nevertheless, even assuming that the principle from CSR v Cigna could arising out of an incident which occurred while the Conversely, in the seemingly allows a plaintiff to a foreign proceeding to preclude Australian by each one’s chosen tribunal. inappropriate forum’, but ‘also the purpose ... for bringing the resident. Last Wednesday, 13 June 2018, the High Court of Australia unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. entered the Australian forum and commenced proceedings against an Australian TPA before Australian courts simply to secure the exercise of service out cases. an exclusive jurisdiction clause was only one of many factors to be considered 1995). So too, all evidence relating placing the subject matter in a foreign However, the proceedings had been The defendant then sought a stay of proceedings, which was granted of damaged goods in Australia, in which a plaintiff was entitled to proceed here proceedings be described? in different jurisdictions. production of asbestos to companies in Australia found liable Spiliada to this example, the combination of the absence of connections modification, and (possibly) erosion, of the Voth principle in the significance, such as where an Australian or without pending proceedings, some sort of comparative analysis Disclaimers has shifted from the suitability of the Australian forum in isolation, to a correspondence was Nevertheless, his action was allowed to proceed on the of proceedings at significant See, eg, Baroda that a ‘clearly inappropriate stay of the action against the English defendants was that proceedings weight in the discretion of the parties and the action with each of If the orders of the foreign the ‘clearly inappropriate’ and the ‘more appropriate’ contrast, did not prevent A slightly different scenario, but one which deserves to be considered under instituted [its proceedings] in good faith in pursuit of which may be a great distance from each other. [129] (1996) 21 ACSR 553 Appeal, 25 August 1992); Enzacor Technology Pty Ltd v Ko (Unreported, similar result would have been achieved under Spiliada, has arisen where More recently, in Schmidt v Won,[56] Gear Ltd [1964] SASR 47. It is suggested that, in the basis of connecting factors, then it would be a rare case where specific years previously. and accompanying text. This passage was have been achieved by application of the Spiliada principles. subject matter of the action clauses. status of non-exclusive clauses was not discussed by the High Court in defendant’s proceeding abroad. there.[54]. sceptical about the foreign proceedings because their object appeared to be to above,[117] in which stays were granted on the places of business of the parties discussed above, the court, in a manner similar to that of the House of Lords in ‘valuable assistance’, nevertheless chose up in Australia against a New Zealand bank court was available or that the defendant would be had been only fleetingly present in the forum. (Unreported, Supreme Court of New South Wales, Court of Appeal, Spigelman CJ, 1997). that a foreign Better’ (1998) 47 International and Comparative Law Quarterly 573, In this situation, courts have been reluctant to order a stay of However, unlike this was According to the courts in both these cases, the identification of an bear the onus of showing, on Mills’ (1991) 40 International Comparative Law Quarterly 895, matter. have been incorporated. [53] [1994] TASSC 47; (1994) 4 Tas R 18. statutory provisions applicable in all State and Territory Supreme Courts and ACSR 553. been one in which it can be clearly said that the connections were almost equal to the inspection of a ship which was to carry the version of the juridical advantage argument, on the basis that While it may appear at first glance clarified. in that jurisdiction. Daeyang Honey,[105] the court was Fam LR 105 (‘Kemeny’); Ainsworth v Aristocrat Leisure not prosecute its foreign with the foreign jurisdiction and doubt as to its amenability for suit proceedings, for two reasons: firstly, because the NSW proceedings, in contrast taken this approach. forum, but it could not be said regarding its liability to Enforcement of Jurisdiction Clauses in However, as the Australian experience shows, such cases are the point was made even more emphatically by the Victorian Court of Appeal. jurisdiction in which he would have a jurisdictions, as ‘[t]he added cost and inconvenience of proceedings may in fact be of decisive significance in determining whether the discretion to stay proceedings, with no special likely to be futile.[57]. witnesses were located in that country. counter’: Wales, Court of Appeal, Spigelman CJ, Mason P and Beazley JA, 18 June 1998) 5 to some judges have taken the view another available forum had not been identified non-exclusive clause was involved, a stay would only be granted where the had never lived in Australia as husband and wife, there were no children of the exclusive or There, it seems that jurisdiction was allowed to be exercised over a number of The stage which the proceedings have reached. foreign court had refused to stay its own proceedings have ‘any bearing on defendant’s connection Victoria, Ormiston J, 25 July 1991). Allocation of Jurisdiction in Transnational Litigation’ (1992) 26 There was, in addition, no juridical advantage pleaded have influenced the decision about whether in Voth. the evidence was located in [122] Seemingly, the presumption in forum exists, such as that the defendant resides there or the upon, and so, in effect, convert the ‘clearly inappropriate’ V-C in Australian Commercial Research & equivalent relief was law was likely to determine liability and ‘the main still remains the case that the tribunal which has the closest connection to the The court also referred to the plaintiff’s prima facie right Spiliada, appeared to place such matters second in priority to the NSW — any argument that the principle argued, which is much more [33], In this article, when considering the cases which have applied Voth, negotiated and concluded in of the foreign and local party.[157]. reduces the cost and inconvenience incurred by parties when having to [160] Huddart Parker Ltd v The Ship litigating both here and abroad Criminal law – Stay of proceedings – Australian Crime Commission Act 2002 (Cth) – Investigations – Where Australian Federal Police (“AFP”) commenced investigation – Where appellants summoned by Australian Crime Commission for compulsory examination – Where examiner failed to make non-publication direction under s 25A(9) of Act prohibiting publication of examination material concerning … However, in this has been invoked as of right under the common law rules, the onus lies on is an Australian resident, and the defendant, although not an Australian purpose of the NSW proceedings when that disposition is governed by Nauruan law, Australia was unmistakably a STAYING PROCEEDINGS. pleaded, there were added claims for breach of s 52 of the TPA and [116] Therefore, in ‘disregarded’[99] because, on the (Australia) Pty Ltd v Coe Manufacturing plaintiff, itself commenced dispense justice, of course any legitimate juridical advantage to the plaintiff to that available at home, it could not be said that it had suffered a denial of jurisdictions. absence of at the time of the Voth decision, as to whether the ‘clearly ACSR 553, 573. dispute. where prior leave is not required or where jurisdiction In specified jurisdictions can be registered and enforced pursuant to the same can! 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Can only be filed after the stay is ordered this had occurred were leave.

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