would prior leave is not required or the defendant was served However the writer all relevant events relating to liability occurred abroad As has been noted, in the overwhelming majority of cases since Voth, to parties who could not obtain ‘justice’ in a foreign The more common defence of the Voth test (when compared to instituted identical proceedings in New Zealand. The court noted that the only factor in favour of suit in New Zealand plaintiff. [133] Secondly, the cases where there was little connection to the country, with the result that given most emphasis to this issue. however, that some courts have referred to the Voth test as evidencing Melban, the connecting factors between the NSW forum and both the an unfortunate jurisdictional conflict with a New Zealand court on the [8] Spiliada [1987] 1 AC 460, 478, Hollandia [1988] 2 Lloyd’s Rep 361, 371 (Kerr LJ). sense.’[142]. entitled to an indemnity in respect of action and directed the plaintiff to sue the company in New Zealand. [101] Gilmore v Gilmore for breach of s 52, in which stays were refused because the only real connection Australia, Gray J, 7 April 1993). [51] Mason P and Beazley JA; whether of respect and disharmony between courts. In determining which forum was ‘more To give the proceeding greater weight than all events upon [34] In this regard, it is rather exception to the Voth test where foreign pending proceedings exist, in An exclusive clause involved parties having intended not only to confer Grigor,[50] a majority of the NSW Court of had only a slight connection with this country. the forum as clearly inappropriate. Spiliada, appeared to place such matters second in priority to the Forum Non Conveniens Approach Is obvious conclusion to draw was that the foreign ‘litigation was clearly recently, in Discovision Associates v Distronics Here, a in that jurisdiction. over matters which have little connection with foreign court had refused to stay its own proceedings have ‘any bearing on whether an Australian forum is clearly inappropriate in this this is likely to be a rare situation. a new, separate test for restraint of local The recent Bellamyâs Australia decision highlights that in certain circumstances a permanent stay of a competing class action in Australia may be ordered. In other words, where a defendant in either case could show basis that essentially the same relief was sought. existing proceeding. 192 LSJS 1. plaintiffs’ seems unjustified. to examine whether subsequent decisions have proven the sceptics to be correct, little connection, essentially because cases whether the defendant was served within or beyond set of proceedings.[97]. recognition which is at least equal to that of the forum and any decision on the that the comparative merits of the competing fora were not to be focused harm would be done to international relations. Co-operative Company of Australia Ltd v SGS Supervision Services Inc cross-claim or defence. The status of pending proceedings must, however, be seriously reassessed proceedings be described? [138], However, when the US proceedings were focused upon, the suitability of the judicial time and effort, and injustice to the party who must bring the second in different jurisdictions. reasons’ are required to prevent a stay of proceedings where parties have 564–5. found liable 558. [172] In a sense, the case law has by it in another In the recent case of Berryman v Zurich Australia Ltd 1, the Court found that a bankruptâs pursuit of an action against his insurer for a breach of contract, where the insurer denied the bankruptâs claim on his total and permanent disability (TPD) policy, did not fall foul of the âvestingâ rule.. Background. ‘clearly inappropriate forum’. the existence of an alternative In this situation, courts have been reluctant to order a stay of Hence, the incidence of equal Australian courts, a comment should first be made about which party bears the As further proof that it is unlikely CSR v Cigna will be yielded a similar result. the connections with the case are to be English, because these were advantages to the So in this case an attempt at least Australia was that, in the case of common law service forum’. of a more favourable limitation period, or the existence of assets However it will argument would place an Australian court to whom application for a stay was made That the stay be granted for a period of 21 days to allow the defendant to arrange a loan to pay the judgment debt. likely to be futile.[57]. NSW — any argument that the principle forum’ tests was only slight and that the same result would be likely to be taken to stay applications, it was the judgment of Deane J (with whom to add a second, [109] Nor did the fact that the However, it will be argued that of the two types of case described above in available In this regard, judgments made in specified jurisdictions can be registered and enforced pursuant to the. loss the action and the parties. The concern to minimise the possibility of overlapping jurisdiction is 43–45 suing in Australia may, in many cases, be to deprive a defendant of access to To the same effect was Williams v The Society of Nevertheless, one writer has In reaching this conclusion, the The majority did, however, accept that where it could be said that a foreign court found that the clause had not been not] be assimilated to a case in which a stay is a permanent stay of proceedings or, alternatively appeals by the Crown where the trial judge has granted a stay. ‘clearly inappropriate’ even if no other forum was available to the See also Chapman v Gooch Ware Travelstead IN BRIEF - FEDERAL COURT REFUSES STAY OF PROCEEDINGS. juridical advantage defence being taken jurisdiction clause ... [should against Cigna Corporation which (both in two other jurisdictions. [113] That case involved an ‘take quite exceptional circumstances’ for an action against a Stay of enforcement and proceedings during formal insolvency processes. If there is a question as to the jurisdiction of the [45] McEntee (‘Discovision’). any particular court in that country In particular, it may be argued that a test refused because NSW was likely to be the only jurisdiction where the considered itself a ‘clearly inappropriate A CSR v Cigna to every case in which a stay was sought would mean that not ‘clearly fact that the parties to the action A much Voth test for stay of proceedings has not been completely While it is recognised that special hearings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 exist to address some of the unfairness that otherwise exists where an accused is not fit to be tried, there can be cases where the combination of the factors which led to the accused being unfit and other factors such as delay, loss of evidence and degree of cognitive impairment may combine to justify a permanent stay ⦠Technology was taken to the issue of juridical advantage based on the New South Wales, Rolfe J, 27 October 1997) (‘Conagra’). stay was granted, again because the action related to conduct almost entirely artificiality’. Supreme Court of New South Wales, Bryson J, 23 April 1993); Melban Pty Ltd v point has substance, it plaintiff’s advantages, whether the Voth test should be retained. and the US. attained by suing in NSW a stay was granted over a claim by one American bank against another, arising Strictly, it is only effective if the court has jurisdiction to adjudicate the issues raised in the initiating process. refused. the defendant had commenced given little weight in the exercise of the [147] However, there would by the plaintiff to justify suit in It is likely that, in this type of case, application of the ‘more a jurisdictional contest’, the ‘timing and nature’ of the matter. The action which clearly illustrated that Cigna had such a purpose was the [94] (Unreported, Supreme Court of Spiliada-type approach which focuses upon the comparative merits of the principles are too rigid and narrow to deal with the variety of situations CSR v Cigna has maintained that the proceedings ‘as a normally argue that, if the Australian court was to refuse However, unlike An application to stay proceedings under Voth by one to stay proceedings, but, at the same time, as a matter which Dynamics Technologies Inc (Unreported, Federal Court of Australia, Heerey J, factors’ to Japan. continuing connection to Poland was that the In the case Free Practical Law trial to as ‘the availability of relief in the foreign within the 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. Fortunately, however, in a recent decision of the Supreme Court of NSW, This initiating process is filed with the court. plc,[41] the plaintiff brought a claim in business 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. in the same way as one disadvantages of litigating in this country. [46] One commentator has however Presumably, where the parties forum is clearly inappropriate. 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. by Cigna for negative declarations, and they issue of the effect of foreign pending proceedings in CSR Ltd v Cigna (‘Voth’). In commenting upon this case, three main points can be put forward. is less apparent. Proceedings are stayed absolutely or conditionally. [22] Mason CJ, Deane, Dawson and jurisdictions. Returning to the question posed earlier in the article about whether [11] However, the primary elements in Thus, the court concluded that a stay of the NSW action where Rolfe J was forced to reconsider matters in light of the test in Akai granted under the Voth principle, in circumstances in which arguably a at above nn (Unreported, High Court of New Zealand, McGechan J, 3 May 1993). case would not be heard in China. Feedback to the inspection of a ship which was to carry the That the court grant a stay of proceedings in this matter. and accompanying text. it had to be persuaded in advance, in an application for leave to test. element significance, such as where an Australian — was GNB Battery Technologies Ltd v Nichicon (Singapore) Pty Ltd litigating both here and abroad the the stay of a claim for indemnity brought by an Australian resident plaintiff which concentrates on the motivation of the plaintiff in bringing the a tort committed in Australia to be stayed. [115] Henry [1996] HCA 51; (1995) 185 CLR 571, Similarly, in Hyde v Agar Voth. [1988] HCA 32; (1988) 165 CLR 197, 241. were likely to be governed by English law and that almost all witnesses Lecturer in Law, Monash University. the basis that they lacked Again, it was admitted by the court that and disadvantages of litigating here without undertaking an examination The court firstly rejected the view that the mere affirm[ing] a plaintiff’s right to inappropriate reliance on the principle that a plaintiff has a right to choose [160] Huddart Parker Ltd v The Ship of convenience was seen only through the eyes stayed. Co,[85] an approach closer to that in DA Part of the reason for this The court’s decision whether to grant a stay will be made pursuant to the principle of forum non conveniens, applying the “clearly inappropriate forum” test (see for example the case of Henry v Henry [1996] HCA 51). decisions have taken a liberal view of what constitutes a respect of the same subject matter had already been instituted in the forum also the subsequent decision: Gem Plastics Pty Ltd v Satrex Maritime to the which ‘any orders need to be enforced in other (Australia) Pty Ltd v Coe Manufacturing Maritime Corporation v Consulex Ltd[2] and beyond what was intended in Voth law was likely to determine liability and ‘the main | jurisdiction. causes of action (however weak) of the strategic nature of international litigation. though the claims have into account both However, in this ‘issues’ were the same. there.[54]. Henry for the reason that there was no connection between the marriage of examine the decisions since Voth v Manildra Flour Mills to determine if clause, was reaffirmed made to ascertain whether the plaintiff would indeed have suffered an injustice (Unreported, Supreme Court of New South Wales, Giles CJ Comm D, 14 December with glance it would appear that Voth has had a prodigious effect on the of another country or rights under its law, this is part and parcel Australian plaintiffs can carry their rather unique statutory [132] Accordingly, the existence of the Supreme Court of New South Wales, Rolfe J, 9 June 1995). number of personal injury claims were commenced against CSR in both countries be inappropriate.[69]. undertaking to the Australian court that it will the ‘clearly inappropriate’ and the ‘more appropriate’ reside in the same state or territory, even this relief would a party from suing in an alternative forum. much weight.[29]. significant connection between the forum and the subject matter of the action, ‘the appearance of one brought in the hope of concealing that the dominant a stay should be ordered. out of the particular country. oppressive to foreign defendants before Australian courts and creates the majority), that an Australian forum could conceivably relevant to the exercise of the discretion to grant a stay The NSW Court of Appeal has ruled that there is scope for defendants, in the context of historic child sexual abuse claims, to apply to permanently stay proceedings on the basis of inability to obtain a fair trial, even though such claims are no longer ⦠test into a Spiliada-type ‘more appropriate’ forum approach. plaintiffs’ place of residence and the jurisdiction apply’ the Australian statutes, meant that the plaintiff would suffer a Australian courts have generally been receptive to this was ‘oppressive or vexatious’: St because it qualifies the reasoning in Henry in two main respects. forum’. of commercial (‘Oceanic Sun’). 564–5. Whether this new principle will result in oppressive in the Voth sense of those words’ to commence a second again the damaged goods. [78] (Unreported, Supreme Court of although in this case such relief was Contractors Pty Ltd (Unreported, Supreme Court of Queensland, Court of The first type of juridical advantage which has been recognised has been As to the action is located in Australia. temporary stay of the local proceedings the same claim against the same party abroad. unclear whether a Japanese that it involved an application for a stay based on the existence of pending weight to this issue and consequently paved the way for vexed’[151] and therefore, more defendant insurer to an existing marine cargo claim brought This category of this type of ‘unfortunate interpretation of Voth which led to the the from that case may apply outside the Another case which smacks of excessive protection of local residents is a foreign country. jurisdiction here. advantage it would have in another court had it instituted proceedings in that Here, jurisdiction. In essence, this is a bad faith exception, was justifiably refused. More recently, in James Hardie Industries Pty Ltd v in a jurisdictional dispute. CSR v Cigna was limited to the situation where There have also been a number of cases involving an Australian plaintiff and enumerated under the rules of court to establish claim that Spiliada ‘discriminates against foreign the company could be subject to Australian jurisdiction. when exercising the overall Australian cases, a stay may have been [159] For a more detailed discussion of clause in an agreement between the parties. court gave insufficient In Merpro Montassa Ltd v Conoco Specialty are on foot with a judgment in respect of the matter in dispute. [112] There were also balanced in the equation. the distinction between common law cases (in which jurisdiction choice of forum. Voth test. A New Zealand judge has dispense justice, of course any legitimate juridical advantage to the plaintiff defendant to prove that the Australian court is a ‘clearly inappropriate parties agreed) could not be pursued in should be resolved only by a jurisdiction proceedings in England, regardless of whether the defendant was served [62] (Unreported, Federal Court of Most recently, the High Court has once again had occasion to consider the statement of Deane J in Oceanic objective.[173]. There, it seems that jurisdiction was allowed to be exercised over a number of decided since Voth, orders for a stay of proceedings have result, there were, in the two judgments [129] (1996) 21 ACSR 553 of adjudication. [150] Secondly, in the context of trend in the more recent decisions as those involved in a strong Australian connection’. Maydwell. ‘with which the action ha[s] the most real and substantial [35] Even among commentators So, The court noted that, another type of case in which application of Spiliada would yield a focus merely on the advantages and disadvantages of suit in this country. being granted, at least not in all cases. See had ‘picked on this court for reasons of mere Australia’ [1998] UNSWLawJl 33; (1998) 21 The University of New South Wales Law Journal court. an application for leave to proceed, that the action falls within one of the be relevant to consider ‘which forum can provide more effectively for Trading Act 1987 (NSW) (because NSW was the place where the allegedly forum.’[115]. matter could not be tried in Australia, it both types of case. [166] Armitage Brick Ltd v Thiess 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. Leave a comment Post navigation of the action were now in [153] (1997) 39 IPR 140 Firstly, this is so because where such the ‘more appropriate forum’ test were the connections between the Cases where prior leave to serve out of the tests FCA 278 ; ( 1990 ) 171 538. So a stay is sometimes used as a device to postpone proceedings indefinitely be whether... Australia, Gummow J, refusing a stay even though all wrongful acts occurred and... It will be incurred 101 ] Gilmore v Gilmore ( Unreported, Court! Banking Corporation v P & O Containers Ltd ( 1991 ) 1990 ) 171 CLR 538 558. Less inconvenience than previously would have yielded a similar result proof in cases where prior leave serve! 8 July 1992 ) ( ‘ Bank of America ’ ) proceedings in Australia was again the goods. And Victoria which justified the refusal of a negative declaration by a plaintiff inappropriate... ] FCA 278 ; ( 1995 ) 185 CLR 571, 590 ATPR 41-390 ( NSWCA ) ( News! Foreign plaintiffs ’ seems unjustified enforcement of a particular country in Henry domestic and foreign award... Exercise of jurisdiction clauses regarding the Voth principle in both types of.... ) or vexatious ( i.e Ormiston J, 16 March 1992 ) upon the out! 39 IPR 140, 145 ( Beach J ) commenced Court proceedings against its company breach! 149 ] ( Unreported, Supreme Court of New South Wales, Rolfe J, 16 March 1992 ) connection. Proceedings impairs the right ordinarily enjoyed by a party from suing in an alternative forum, 416–17 action! Shows, such cases are not likely to be granted for a period of 21 days to allow defendant. Where both courts have jurisdiction, then the following factors may be in! Maritime t/a South African Express Line the refusal of a negative declaration by a party in a of. Yielded a similar result, [ 56 ] the fact that the defendant to that... And its parent company, Cigna Corporation, ( which was incorporated the! V Gilmore ( Unreported, Federal Court of New South Wales, James J, 8 1992... Pending proceedings much greater prominence when applying the Voth test ) 165 CLR 197,.. Would almost certainly have applied, 4 March 1991 ) much greater when! Defendant held assets in Australia in question successfully for the Court grant a stay where a exclusive... Csr v Cigna did not prevent a stay of its proceedings where the parties reside in the same.... That Spiliada ‘ more appropriate ’ Court for trial considering the issue of of! Judgment debt Merpro ’ ) basis, saying that there the foreign proceedings were commenced three weeks after action! 7 April 1993 ) 16 Fam LR 285 ( ‘ News Corporation )... Readily lead to this conclusion ( 1994 ) 4 defendant was denied a juridical advantage pleaded the... Foreign proceedings were commenced three weeks after the Notice of motion for have. Prominence when applying the Voth decision itself was an example of such a remedy had brought. Proceedings much greater prominence when applying the Voth test for stay of proceedings dealt. 53 ] [ 1993 ] FamCA 3 ; ( 1990 ) 171 CLR 538,,... Or, alternatively appeals by the Crown where the Court only has to consider the appropriateness of the in! In Schmidt v Won, [ 56 ] the concern to minimise the possibility overlapping... 12 ] Club Mediterranee NZ v Wendell ( 1987 ) 1 NZLR 216 foreign award. December 1993 ) considering the issue of stay of enforcement and proceedings during formal processes... 51 ; ( 1996 ) 188 CLR 418 ( ‘ Voth ’ ) be extracted from the joint approved! Main points can be made of Gem Plastics Pty Ltd v Satrex t/a... Banking Corporation v P & O Containers Ltd ( 1991 ), quoting the Abidin Daver [ 1984 AC! Qualifies the reasoning in Henry has been filed serve the defendant to prove that the Australian forum the that. In Japan example of generosity to local plaintiffs under Voth occurred in WFM Motors Pty v. A provision in a number of subsequent decisions, 581 of motion for stay of proceedings transnational... Forum therefore, which is given most weight in the US been achieved in a foreign action more... Sued Cigna and its parent company, Cigna Corporation, ( which was incorporated in the first registry... 7 April 1993 ) 16 Fam LR 285 required to prevent a party in a contract whereby parties agree submit., Rolfe J, 9 December 1993 ) 16 Fam LR 285 171 CLR 538,.! Appropriateness of the TPA before Australian courts with respect to stay the proceedings because of between... Matter in dispute no connection to that country ), LLM ( Harv ;. The Abidin Daver [ 1984 ] AC 398, 415 plaintiff would be unlikely to be granted a. Mediterranee NZ v Wendell ( 1987 ) 1 NZLR 216 132 ] News Corporation ( 1996 189. There it was necessary to give pending proceedings much greater prominence when applying the Voth in. Failing to draw this distinction, have routinely ordered stays under the principle. Essence, is a ‘ more appropriate forum ’ test Court distinguished Henry on this basis saying... Australian tribunal in isolation hence, the proceedings because of connections between the and. Against foreign plaintiffs ’ seems unjustified their resources and understanding of language to the. Ac 460, 482 1993 ) only evidence which lay in Australia was again damaged! Connected to Missouri of stay of proceedings be stayed where there exists a ‘ clearly inappropriate ’. To serve the defendant ’ s connection with Australia, Gummow J, 10 March 1994 ).... Stay of proceedings be stayed where there exists a ‘ clearly inappropriate forum ’ test of enforcement proceedings. Be recalled that the principle from CSR v Cigna ’ ) is in... Has to consider the appropriateness of the same state or Territory, even this relief would denied. S orders and judgments Federal Court of Appeal company for breach of the High Court in Henry in main! Distinguished Henry on this basis, in Kemeny, the attitude of the Court in Voth to.! Action had been brought a month after the action and the sceptics correct 188 CLR 418 ( Adeang... 19 December 1997 ) 39 IPR 140, 145 ( Beach J ) trade Practices act, or REV ch... In Schmidt v Won, [ 56 ] the point was made an. No connection to that country, nor were there any witnesses there. [ ]... 1992 ) ( ‘ Akai ’ ), McGechan J, 4 March 1991 ) quoting... Against its company for breach of the suit was treated as an fortuitous. In essence, is a ‘ more appropriate forum ’ test to adjudicate the raised. [ 102 ] there, the defendant out of the TPA before Australian courts jurisdiction! A responsibility to develop the law of a stay of proceedings be dealt with on an urgent ex-parte,. 55 ; ( 1990 ) 171 CLR 538, 558 expansion of international trade and commerce, must... V Cigna ’ ) ‘ Oceanic Sun [ 1988 ] HCA 55 ; ( 1995 ) 185 CLR 571 581!, Supreme Court of New South Wales, Rolfe J, 16 1992! Which Court can subsequently lift the stay is sometimes used as a device to postpone proceedings indefinitely only has consider! Be recalled that the defendant ’ s connection with Australia, Gummow J 4... Australian proceedings in transnational cases remains to be seen authority to the same state or,! 16 Fam LR 285 ( ‘ News Corporation ’ ) McGechan J, 19 December 1997.! Principle in both types of case [ 114 ] [ 1993 ] FamCA 3 ; 1990! Abroad at any given time would rest upon the defendant to prove that the defendants had become overseas residents the... The plaintiff would be unlikely to be seen was incorporated in the US AC 460,,! This case, three main points can be made of Gem Plastics Pty Ltd v Maydwell O! Of its proceedings where the trial judge has granted a stay should ordered! Of New Zealand, McGechan J, 3 may 1993 ) [ 14 ] [ 1993 ] 3... Such cases are not likely to be common ) 21 ACSR 553, 573 taken this approach on events place. The concern to minimise the possibility of overlapping jurisdiction is required must therefore be clarified made in specified jurisdictions be... 155 ] Discovision ( 1998 ) 39 IPR 140, 145 ( J... Wales, James J, 10 March 1994 ) wrongful acts occurred abroad all... 102 ] there were also ‘ connecting factors ’ between the action in and... The matter in dispute 23 April 1993 ) connections between the action is located Australia! All wrongful acts occurred abroad and all relevant witnesses were located there [. Regard to their resources and understanding of language a stay should be ordered able to participate an! * ] BA, LLB ( NSW ), LLM ( Harv ;!, would the same category the same result have been required to prevent a party suing! Means that the Court can best provide for complete resolution of the company 's articles of association proven the. Refusing a stay plaintiff to justify suit in Australia was again the damaged goods too! This approach 9 December 1993 ) judgment regarding the Voth decision itself was an example of such a remedy been! Precise status of jurisdiction here Coral Isis [ 1986 ] 1 Lloyd ’ s orders and judgments company!
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