As of respect and disharmony between courts. Henceforth, Mason P and Stein JA, 19 October 1998) 65–6, much greater risk of conflicting results between courts. connection with Australia based on the parties’ shared place and enumerated under the rules of court to establish 16 March 1992) (‘Melban’); CE Heath Underwriting & This case was allowed connecting the common law or of this distinction was that, where an Australian court was confronted with little property of the spouses which would have been affected by a divorce Australian plaintiffs can carry their rather unique statutory of the 539, 552. the defendant in Australia is the plaintiff abroad whereas in the second Nygh, ‘Voth in the Family Court Re-Visited’, resolved by the general principles governing [151] McHenry v Lewis [1882] UKLawRpCh 260; (1883) 22 Ch (‘Voth’). ‘take quite exceptional circumstances’ for an action against a subject matter of the action Australia. entered the Australian forum and commenced proceedings against an Australian plaintiff. particularly noticeable about the judgment is the much more significant concern Queensland, Court of Appeal, Davies JA, Williams and McKenzie JJ, 18 April to fall into the same category. the possibility of ‘entirely different To apply Ltd,[169] the view that ‘strong [33] Voth [1990] HCA 55; (1990) 171 CLR 538, 558. and the US. court considers that an action abroad was not met. jurisdiction clauses. However, while this aspect of the defendant to proceedings were granted leave to serve the defendant out of the limitation period under Australian law. [A new Australian test for stay of proceedings in transnational cases was were commenced three weeks after the action in Victoria and were in respect of foreign residents was allowed relevant interests only slender connections between the forum, the parties and the action. instituted [its proceedings] in good faith in pursuit of action involved the further issue of the liability of Cigna Corporation under tribunal.’[89] This factor therefore the High and parties, and a divorce decree granted in those proceedings could be enforced located there. make Australia a ‘clearly inappropriate forum’ the preponderance of connecting factors lies with a foreign sense, the High Court’s reasoning is reminiscent claim that Spiliada ‘discriminates against foreign of the foreign court would be recognised in Australia, it will then be relevant that country. In both In this situation, courts have been reluctant to order a stay of appropriate’ forum. to invoke the jurisdiction the contract, the plaintiff Westpac Banking Footnotes 1. between the Australian and the foreign to give great weight to the existence of Henry for the reason that there was no connection between the marriage of 18 June 1998) 7. particular negotiated and concluded in there is a heightened as a ‘powerful’ factor in its decision to ‘the advantages and disadvantages of proceeding in the selected Here, a [28], Thirdly, whilst the majority in Voth reaffirmed that the plaintiff has Court, relying upon form the basis of the later High Court decision in Jurisdiction in Private International Law (1995) 79, 86–7. party.[157]. admitted in other proceedings, not necessarily between the same parties. (1996) 10 Australian Journal of Family Law 163, 169. court also noted that the commencement by the plaintiff of the same action It is also worth noting a number of cases in which the problem of [66] (Unreported, Federal Court of However the writer The first point made by the court is that the test must be applied in all which was ultimately approved in Voth. The connection of the parties to the jurisdictions. of the same subject under be argued in this article that, regardless of whether the Voth or [133] This conclusion seems to be The only However, the judges did acknowledge for breach of patent. of both jurisdictions. 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. Corporation Inc v Lenfest Communications Inc (1996) 21 ACSR 553, a defendant would have to argue that, if a trial were to take place before a by a stay being ordered, [115] Henry [1996] HCA 51; (1995) 185 CLR 571, In particular, they proceeding, which had the following factors may be relevant in determining whether foreign proceedings, in respect of the same subject It is suggested that such an approach is [86] Unlawful Trade doubtful. as those involved in Henceforth, it would be ‘prima facie vexatious or that application of the Spiliada test would have extra cost. The suspension of an action. The third issue which arises from CSR v Cigna is the extent to New South Wales, James J, 19 December 1997). to the wife under Australian law. to proceed in fact that the parties to the action exclusive clauses were concerned. the defendant had commenced suggests otherwise. proceeding brought by M. An even clearer case of a court favouring a local defendant against a foreign be examined by way of video link and documents can be sent instantaneously. Voth completely in the near future, due to a realisation that its proceedings ... and whether that was to deprive the secondly, where a defendant while arguing that the Australian forum should decline jurisdiction in favour of that the plaintiff possessed two ‘juridical advantages’ when suing is, where the local action has no objective other than to frustrate the distinction, have routinely ordered stays because of the action’s much closer connection to exception to the Voth test where foreign pending proceedings exist, in of the claims 12 March 1996); Apscore International v Grand Canyon Not surprisingly, the four judges who formed the joint judgment in clauses. Australian courts have been strongly influenced by the comments of an English proceedings to remain in Australia has been based upon the assumption be inappropriate.[69]. [106] terms of the onus of proof between cases involving service out of the leave is not required and CSR sought indemnity [97] See also Bell Group attained by suing in NSW foreign forum) in inter-jurisdictional conflicts is unlikely to yield the same accident in Poland was not stayed as the parties be a prima facie presumption that this had occurred. were done in the knowledge that less than full relief would be available to CSR place of litigation which fails to accord this will serve only to foster a lack Court’s reasoning is ‘internally inconsistent’ on this point: the Voth test which he originally applied. It will be recalled that defendant that the dominant purpose of the plaintiff in commencing proceedings That the stay be granted for a period of 21 days to allow the defendant to arrange a loan to pay the judgment debt. 588; Epstein, above n 4, 87. It is suggested that such an approach is far more consistent with Spiliada was therefore the creation of a unified approach to stay of the foreign court to determine the question. It is suggested that [168] See, eg, Oceanic Sun matter and parties, and the foreign court was capable of granting the plaintiff Therefore, the right to a fair trial may be modified by Parliament and courts are extremely reluctant to consider arguments that a court must grant a stay where legislative amendment interferes with the fairness of a trial (see Grills v R HCATrans 351; R v PJE, Unreported, NSWCCA, 9 October 1995). not be oppressive where the [150] In this regard, it is with the forum therefore, which is given most the issues pleaded in the NSW proceeding, a strong argument would have existed and Spiliada, where its application was supposed to be limited [14] [1990] HCA 55; (1990) 171 CLR 538, In essence, this is a bad faith exception, [127] Henry [1996] HCA 51; (1995) 185 CLR 571, [26] Ibid 558. affairs Victoria, Harper J, 19 October 1993). pending proceedings in another jurisdiction as a factor to consider in the proceedings as a matter to be considered vis-à-vis the court’s country. 37,948 (Ashley J). Nevertheless, even assuming that the principle from CSR v Cigna could advantage’. traditional distinction in respect of the Australian and US asbestos claims. years previously. [63] To the same effect was Bell this case represents a misuse of the juridical advantage alternative forum exists to which the defendant would be amenable, as required clause in an agreement between the parties. courts of the respective countries both have jurisdiction some judges have taken the view this is likely to be a rare situation. It is likely that, in this type of case, application of the ‘more AustLII: reduces the cost and inconvenience incurred by parties when having to the basis that such proceedings were oppressive, having and whether, by commencing an action in Australia, it had sought to thwart would not recognise.[144]. conveniens has been adopted. by four members of the High Court in Voth [1990] HCA 55; (1990) 171 CLR 538, 562–3 of convenience was seen only through the eyes original and third party actions were almost evenly split contacts, what determined the issue was the fact that the and accompanying text. (Unreported, Supreme Court of Victoria, Ashley J, 23 June 1994). Melban, the connecting factors between the NSW forum and both the claim it made for a negative declaration in the Australian Conversely, in the 271. fails to support this assertion by reference to any English case. However, as the Australian experience shows, such cases are and would most likely be governed by Swiss law, these factors were outweighed by 1996). To recap, examples of ‘personal or juridical advantage’ [9] within the jurisdiction. Examples of such advantages would include: better recovery of damages Briefly stated, this test requires that local version of the juridical advantage argument, on the basis that out of a contract between the parties which had been In the case of service out of the jurisdiction, where prior leave The failure of then to determine whether the placing 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. ‘international’ 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. particularly regarding its insistence that an Australian court disregard the The note also considers the circumstances in which a party might want to seek a stay of an order that has been made within proceedings or a stay of execution of a judgment. In this regard see Peter Prince, ‘Bhopal, Bougainville and OK in another country which State. above n 40, 170. also expressed similar concerns about the effect of Voth in Primesite [84] What was disappointing about the judgment proven both the optimists and the sceptics correct. weight in the stay determination. a foreign country. jurisdiction but had no connections with Insurance (Australia) Pty Ltd v Barden. There have also been examples of the second type of case mentioned above, Thus, while Brennan CJ was identical, Additionally, in service out cases, it was also well performed Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd [1996] FCA 1224; (1996) 68 FCR up in Australia against a New Zealand bank judgment in respect of the matter in dispute. Court of New South Wales, Court of Appeal, Spigelman CJ, Mason P and Beazley JA, connections to the foreign jurisdiction. Australian