I. INTRODUCTION
December 2015 marked the twenty-fifth anniversary of the High Court of Australia's landmark ruling in Voth v Manildra Flour Mills Pty Ltd.Footnote 1 This judgment, which has been widely regarded as the definitive pronouncement on the application of the forum (non) conveniens doctrine in Australia, was significant for two main reasons. First, it addressed some of the uncertaintiesFootnote 2 concerning the practice of discretionary (non-)exercise of jurisdiction in Australia which had been generated following the High Court's judgment in Oceanic Sun Line Special Shipping Co Inc v Fay.Footnote 3 The decision in Voth confirmed that the ‘clearly-inappropriate-forum test’, which had been first conceived of in Deane J's judgment in Oceanic Sun,Footnote 4 provided the basis for the Australian court's approach to the practice of discretionary staying of proceedings, and the related notion of service out of the jurisdiction.
Second, and more fundamentally, the judgment in Voth has been widely regarded as signifying a point of divergence in the Australian court's approach to the forum (non) conveniens doctrine from the position in England, following its restatement in 1986 in Spiliada Maritime Corporation v Cansulex Ltd.Footnote 5 Many private international law scholars and practitioners have observed that the Voth test ‘is not the same as that propounded in the Spiliada [case]’;Footnote 6 that it is, in fact, a ‘unique approach’Footnote 7 which is ‘stricter’ than the English doctrine,Footnote 8 making it harder for a defendant to obtain a stay of proceedings in Australia than in England. In many ways, the prevailing view is that the Voth and Spiliada tests are functionally different doctrines.Footnote 9
A quarter of a century on from the ruling in Voth, this article reconsiders the Australian forum (non) conveniens doctrine. The discussion is presented in three main parts. Part II outlines briefly the doctrine's origins and development in Australia. Part III sets out the orthodox understanding of the modern-day forum (non) conveniens doctrine in Australia. Part IV challenges the prevailing conception of the Voth test, based on a detailed analysis of the Australian forum (non) conveniens cases, concerning international-private-law (rather than interstate) disputes. It argues that the accounts pointing to differences between Voth and Spiliada are overstated and, hence, unpersuasive. Accordingly, the article's main argument is that while, theoretically, there may be a narrow conceptual space between Spiliada and Voth, it is so narrow as to be practically non-existent.
II. FORUM (NON) CONVENIENS DOCTRINE IN AUSTRALIA
A. The Doctrine's Historical Development
For much of the twentieth century, the Australian and English courts’ approaches to discretionary (non-)exercise of jurisdiction were essentially identical. This similarity was largely due to the (mostly one-way) influence of English cases on the development of this area of law in Australia.Footnote 10 For instance, in Maritime Insurance Ltd v Geelong Harbor Trust Commissioners,Footnote 11 Australian law's pre-Voth locus classicus in the context of staying of proceedings initiated as of right, the High Court embraced the ‘vexatious-and-oppressive test’, as had been applied in early twentieth-century English cases.Footnote 12 This trend continued well into the second half of the twentieth century.Footnote 13
Similarly, English authorities shaped the Australian court's approach in service-out cases. Whether the proceedings were served on a defendant based in another Australian stateFootnote 14 or another country,Footnote 15 Australian counsel (and judges) frequently referred to well-known English decisionsFootnote 16 in arguing (and outlining their reasoning) on whether jurisdiction should be asserted in a given case.
In The Atlantic Star,Footnote 17 in 1973, the English court began gradually to transform its approach to discretionary staying of proceedings by relaxing its conception of the vexatious-and-oppressive test. This significant development did not go unnoticed in Australia; Australian counsel and judges were quick in employing the liberalized test in their submissions and judgments.Footnote 18 Indeed, shortly after Lord Diplock's reformulation of the liberalized vexatious-and-oppressive test in MacShannon v Rockware Glass Ltd Footnote 19 courts in Australia appeared, almost as a matter of course, to modify their approach accordingly. Noteworthy in this respect is the 1980 decision in In the Marriage of Takach (No 2).Footnote 20 This was a lis alibi pendens case, concerning, inter alia, two sets of divorce proceedings in Hong Kong and Australia. In the Australian proceedings Gibson J applied the MacShannon test. He ordered a stay after concluding, in terms identical to those set out in MacShannon, that the Australian court was not the ‘natural forum’ for entertaining the dispute.Footnote 21 Similarly, the MacShannon test formed the basis for granting stays of proceedings in interstate cases. For instance, in Garseabo Nominees Pty Ltd v Taub Pty Ltd, where the defendant had sought to stay the proceedings in New South Wales in favour of the Queensland court, Yeldham J considered that the Australian High Court's ruling in the Maritime Insurance case did not stop him from applying the MacShannon test.Footnote 22 After a detailed discussion of the various speeches in the MacShannon caseFootnote 23 Yeldham J ordered a stay of proceedings in New South Wales.Footnote 24
In 1986 the transformation of the English court's approach to the practice of discretionary staying of proceedings was completed in the House of Lords’ landmark ruling in Spiliada. Under the Spiliada test, which is also known as the ‘more-appropriate-forum test’, in order to obtain a stay of as-of-right proceedings, the defendant has to persuade the English court that there is another foreign court which: (a) is available to decide the dispute; and (b) is based in a venue with which the dispute has closer connection than it has with the English court.Footnote 25 If these hurdles are overcome it would then be for the claimant to seek to resist the stay by showing that the foreign court is not more appropriate because the dispute will not be justly disposed of in the more closely connected forum.Footnote 26
B. The Oceanic Sun Case
Given that for nearly a century courts in Australia had incorporated into Australian law the changes in the English approach to discretionary (non-)exercise of jurisdiction, it was reasonable to assume that,Footnote 27 when presented with the opportunity, they would do the same in relation to the Spiliada test. Indeed, some ten months after the decision in Spiliada, that opportunity presented itself to the High Court of Australia in Oceanic Sun. Rather surprisingly though, in a three-to-two majority ruling,Footnote 28 the High Court refused to adopt the Spiliada doctrine.
The facts of the case are well known.Footnote 29 For our purposes, therefore, it is only necessary to revisit the majority Justices’ rationale for resisting the adoption of the Spiliada doctrine. The majority Justices’ stance, in opposition to Spiliada, was premised on two main considerations. First, they regarded that the scope for the court's discretion under the more-appropriate-forum test was unduly broad and would lead to unpredictable outcomes. For example, Brennan J observed that ‘the English law [had] moved from a discretion confined by a tolerably precise principle [under the St Pierre test] to a broad discretion [under Spiliada]’.Footnote 30 Similarly, Deane J deemed undesirable the post-Spiliada expansion in the scope of the court's discretion to stay its proceedings.Footnote 31 Second, the majority regarded the Spiliada test to be out of step with earlier Australian authorities—specifically, the Maritime Insurance case. According to Brennan J, ‘the function which the courts of [Australia] would be required to perform if the new English approach were adopted would … be inconsistent with what we have hitherto understood to be the function and duty of the courts’.Footnote 32 Deane and Gaudron JJ broadly shared the same sentiment and, hence, were unwilling to embrace the Spiliada test.Footnote 33
While united in their rejection of the Spiliada doctrine, the majority Justices were divided on the doctrinal framework for the court's application of the forum (non) conveniens doctrine in Australia. Brennen J favoured an approach which afforded the court a narrow scope for exercising its discretion.Footnote 34 Therefore, he considered that the vexatious-and-oppressive test, as outlined in the Maritime Insurance case, should continue to provide the basis for the court's discretionary (non-)exercise of jurisdiction.Footnote 35 Deane and Gaudron JJ, however, preferred a forum (non) conveniens doctrine which gave the court more room for manoeuvre. Thus Deane J, who had the support of Gaudron J,Footnote 36 proposed that, in the context of as-of-right proceedings, the court has discretion to stay its proceedings if it is persuaded that ‘having regard to the circumstances of the particular case and the availability of the foreign tribunal, [the Australian court] is a clearly inappropriate forum for the determination of the dispute between the parties’.Footnote 37
Deane and Gaudron JJ were adamant in distinguishing between their approach and that outlined in Spiliada. They emphasized that under the clearly-inappropriate-forum test the court was concerned with establishing its own (in)appropriateness to entertain the dispute. Under the Spiliada test, though, the question is whether the available foreign forum is (in)appropriate. Therefore, Deane and Gaudron JJ stated that under their test ‘the mere fact that a tribunal in some other country would be a more appropriate forum for the particular proceeding [did] not necessarily mean that the local court [was] a clearly inappropriate one’.Footnote 38
The High Court's decision in the Oceanic Sun case was criticized on three main bases. First, it was considered that the High Court had applied the wrong test to the facts of the case. Oceanic Sun was a service-out case. However, virtually all the submissions and reasoning in the case suggested that it had been commenced as of right. Consequently, the critics have argued that the decision in Oceanic Sun broke with long-standing precedent and, thereby, made it more difficult for a defendant to resist the court's jurisdiction in a service-out case.Footnote 39 Second, the majority Justices’ opposition to Spiliada was criticized as it rendered the Australian approach to discretionary (non-)exercise of jurisdiction out of step with the doctrine in the United States and England.Footnote 40 Finally, and most significantly, the division in the majority Justices’ pronouncements on the application of the forum (non) conveniens doctrine was criticized as it created doctrinal incoherence in this aspect of Australian law.
C. The Voth Ruling
Less than three years after its ruling in the Oceanic Sun case, the Australian High Court was invited to respond to these criticisms in the Voth case. As the facts of Voth have been widely considered in the existing academic commentary,Footnote 41 the discussion in this section only focuses on the High Court's pronouncements on the application of the forum (non) conveniens doctrine.
The court acknowledged that the divergences in the judgments in Oceanic Sun had led to confusion in the understanding of the Australian court's approach to discretionary (non-)exercise of jurisdiction.Footnote 42 In response to this problem, and in order to arrive at a more settled and authoritative position, all but one of the JusticesFootnote 43 endorsed the clearly-inappropriate-forum test as the basis for applying the forum (non) conveniens doctrine. Therefore, the traditional vexatious-and-oppressive test was formally abandoned.
Moreover, the High Court reiterated its earlier opposition to the adoption of the Spiliada test in Australia. For example, in the joint judgment, which has been widely seen as representing the modern-day locus classicus on the application of the Australian forum (non) conveniens, the Justices were critical of Spiliada because, in their view, it allowed the English court to engage in the assessment of the (un)suitability of a foreign court.Footnote 44 Instead, they regarded the clearly-inappropriate-forum test to be much more defensible as it concentrated on the determination of the (in)appropriateness of the local forum by an Australian judge, who would be best placed to make such a pronouncement.Footnote 45 The joint judgment restated the conceptual difference between the English and Australian forum (non) conveniens doctrines, as identified in Deane and Gaudron JJ's judgments in Oceanic Sun.Footnote 46 Accordingly, it set out that, regardless of the availability of another foreign forum with closer connection to the dispute (than the local forum), the Voth test enables the Australian court to sustain its proceedings if it is not a clearly inappropriate forum.Footnote 47
Nevertheless, in the joint judgment, the Justices adopted a much more emollient tone when discussing the Spiliada test. In the Oceanic Sun ruling, when outlining the clearly-inappropriate-forum test, Deane and Gaudron JJ had drawn no support from the English doctrine. In Voth, though, Mason CJ, Deane, Dawson and Gaudron JJ stated that the factors at the heart of the application of the Spiliada test, as outlined in Lord Goff of Chieveley's speech, provided ‘valuable assistance’ for the exercise of the clearly-inappropriate-forum test.Footnote 48 Indeed, they relied on those very considerations in finding that, on the facts in Voth, Australia was a clearly inappropriate forum for entertaining the dispute. The joint judgment emphasised that there was little difference between the approaches in the Voth and Spiliada tests and that they were ‘likely to yield the same result … in the majority of cases’.Footnote 49 Furthermore, and similar to the position under English law, it made it plain that the clearly-inappropriate-forum test provided the basis for the application of the court's discretion in service-out cases. In these cases, the onus would remain on the plaintiff to show that the Australian forum is not clearly inappropriate.Footnote 50
III. THE ORTHODOX UNDERSTANDING OF THE MODERN-DAY AUSTRALIAN FORUM (NON) CONVENIENS DOCTRINE
Notwithstanding these observations, and the High Court's more conciliatory tone towards Spiliada, the orthodox understanding of the modern-day forum (non) conveniens doctrine in Australia is that the English and Australian approaches to discretionary (non-)exercise of jurisdiction are functionally different. According to the prevailing view, as reflected in the Australian legal literature, it is more difficult to obtain a stay of proceedings in Australia than is the case under the Spiliada doctrine in England. For instance, the editors of Private International Law in Australia have advanced the view that the Voth test is ‘a narrower one than that of Spiliada’,Footnote 51 and ‘has not provided defendants much opportunity to have proceedings in Australia restrained’.Footnote 52 Professor Keyes has also pointed to the doctrinal divergence between Voth and Spiliada, observing that, while Voth is a ‘heavily forum-centric’ doctrine, the Spiliada test is more outward looking and hence ‘more likely to lead to fair results in international disputes’.Footnote 53
A similar view, confirming the difference in the forum (non) conveniens doctrines in England and Australia, is also prevalent across the common law world. In England, for instance, the editors of Dicey, Morris and Collins have observed that the discretion afforded to the court under the Voth test is of ‘a much more restricted form’ than the one under the Spiliada doctrine and ‘continues to invoke the notions of vexation and oppression’.Footnote 54 Similarly, Professor Briggs has stated that the differences in the application of the doctrines in England and Australia are greater in practice than had been predicted in Voth.Footnote 55 In Canada, it has also been suggested that it is more onerous for a defendant to obtain a stay under the Voth test than under Spiliada because ‘it may be that very tenuous connections with Australia will be sufficient to justify a finding that the Australian court is not “clearly inappropriate”’.Footnote 56
Given the Voth test's perceived plaintiff-friendly nature in as-of-right proceedings, it has been considered that the doctrinal gap between the English and Australian forum (non) conveniens doctrines is even wider in the context of service-out cases. For instance, Professor Briggs has suggested that, in service-out cases, it is much easier for a claimant to persuade the Australian court to sustain its proceedings than it is the case for a claimant in the same context in England.Footnote 57 Likewise, Mr Brereton SC has stated that ‘arguably the test in Voth will too readily lead to the exercising of jurisdiction over non-residents’.Footnote 58 In this regard, the principles on which proceedings can be commenced against a foreign-based defendant have been considered to be more favourable for plaintiffs in Australia than anywhere else which recognizes service-out jurisdiction.Footnote 59
An assessment of the various legal sources highlights that the prevailing understanding of Voth is broadly founded on two main considerations. The first (and by far the most significant) one is the dicta in the joint judgment in Voth. As discussed earlier, Mason CJ, Deane, Dawson and Gaudron JJ had stated that the English and Australian forum (non) conveniens doctrines were different because under the clearly-inappropriate-forum test the Australian court would assess its (un)suitability as opposed to that of another foreign forum. In other words, the Australian court's discretionary (non-)exercise of jurisdiction did not hinge on the availability of another more appropriate forum elsewhere. This conceptual gap has provided the bedrock for the proponents of the orthodox understanding of the Voth test to argue that the English and Australian doctrines are different.Footnote 60 Put simply, they have been persuaded that the apparent difference of focus in the Australian and English courts' application of Voth and Spiliada necessarily denotes that the two doctrines are functionally different. The second consideration, on which the prevalent view of Voth is founded, is that, despite long-running criticisms of it,Footnote 61 the Australian High Court has continued to endorse the clearly-inappropriate-forum test. Regie Nationale des Usines Renault SA v Zhang Footnote 62 and Puttick v Tenon Ltd Footnote 63 were two of the most recent cases in which the High Court reaffirmed the Voth test. The High Court's refusal in Puttick to replace the Voth test with Spiliada, prompted the editors of Nygh's Conflict of Laws in Australia to observe that ‘the test is entrenched in Australian law’ and that it is only through legislation that it could be reformed.Footnote 64
Against this backdrop, almost any instance in which, in the face of a forum (non) conveniens application, the Australian court has chosen to assert jurisdiction over a private international law dispute has been regarded as an example of Voth's more restrictive scope of operation, relative to its English counterpart. Consider, for example, the decision in Zhang. In this service-out case, the plaintiff, an Australian resident, suffered serious personal injuries while driving a hired car which had been manufactured by the French defendants during his visit to New Caledonia, a French overseas territory in the Pacific. He argued that his injuries had been caused by the defendant's negligence. One of the main questions for consideration concerned the application of the forum (non) conveniens doctrine. By a five-to-two majority decisionFootnote 65 the High Court ruled that the Australian proceedings should be sustained. Although some (though certainly not all) of the factors in the case—such as the lex causae and the location of the witnesses—pointed to France, the court concluded that Australia was not a clearly inappropriate forum and, consequently, chose to sustain the Australian proceedings. Commenting on the case in its immediate aftermath, Professor Lindell regarded the decision in Zhang as illustrative of the practical differences between the Australian and English approaches to the application of the forum (non) conveniens doctrine.Footnote 66 Similarly, in a case note in the Law Quarterly Review, Professor Smart stated that ‘Zhang confirms that extended jurisdiction may be exercised by the Australian courts despite the fact that the dispute has a closer connection to a foreign forum’.Footnote 67 In short, these observations suggest that had the Australian court employed the more-appropriate-forum test, it would have granted a stay of its proceedings.
In light of the foregoing discussion, it is understandable why many have concluded that Voth and Spiliada are practically different doctrines. However, it is argued that the almost exclusive reliance on the dicta in Voth (and its endorsement in subsequent cases) renders the prevailing conception of the Australian doctrine open to question. Surely, a much more telling (and convincing) understanding of the functional (dis)similarities between Voth and Spiliada can be formed if it is, in fact, supported by the post-Voth case law in Australia. In this regard, the (un)persuasiveness of the common wisdom concerning the operation of the Voth test depends on whether there exists a body of precedent—rather than a number of disparate, individual cases—which clearly evidences that the conceptual gap between the English and Australian doctrines is wide enough to functionally render Voth, mutatis mutandis, a more plaintiff-friendly doctrine than Spiliada. The discussion in the next section seeks to address this issue.
IV. ARE THE ENGLISH AND AUSTRALIAN APPROACHES TO FORUM (NON) CONVENIENS FUNCTIONALLY DIFFERENT?
There are different analytical methods which can be employed in assessing whether the Voth test is, in practice, a narrower and stricter test than Spiliada. One seemingly obvious approach is to quantify the number of instances in which the Australian and English courts have decided not to assume jurisdiction over a dispute.Footnote 68 Such an exercise would be illuminating as it would provide a general sense of the ease (or difficulty) with which stays of proceedings are granted in both jurisdictions. However, it is questionable whether a comparison between the proportion of cases in Australia and England where the courts have chosen not to exercise jurisdiction is as useful an indicator of the differences between Voth and Spiliada as it may first appear. After all, a practice of this nature can only help to establish a clear picture of the respective practical differences in the application of the two doctrines if the tests are applied to exactly the same factual and legal scenarios.
It is argued that a much more appealing course of action would be to adopt an analytical approach which highlights, in a fact-neutral manner, any functional (dis)similarities in the application of the Voth and Spiliada doctrines. Based on this approach, the Australian forum (non) conveniens case law should be analysed from three perspectives. The first is specific in focus: it seeks to identify the factors at the heart of the operation of the Voth test and examine the Australian court's application of them. The second, which is rather more general in emphasis, intends to map out the Australian court's broader methodological framework for reasoning in forum (non) conveniens cases. The third builds on the other two. It engages in a comparative examination of the wider implications arising from the application of Voth and Spiliada. This aspect of the analysis thereby seeks to bolster our understanding of any practical (dis)similarities between the tests. These analyses, it is argued, will serve to illustrate the extent to which (if at all) the theoretical gap between Voth and Spiliada is sufficiently wide to support the conventional conception of the two doctrines.
A. The Factors Considered Under Voth
As stated earlier, the Justices who delivered the joint judgment in Voth observed that the factors referred to when applying the Spiliada test were of ‘valuable assistance’ in the exercise of the discretionary power under the clearly-inappropriate-forum test. Indeed, as discussed in Nygh's Conflict of Laws in Australia, the application of the Voth test is premised on identical considerations to those at the heart of Spiliada's operation.Footnote 69 When asked to give up its jurisdiction, whether in as-of-right or service-out cases, the Australian court enquires, inter alia, into the availability of the foreign forum, the dispute's governing law, the existence of foreign parallel proceedings and the location of witnesses and evidence. The assessment of how these factors are applied in Australia, through an analysis of the case law, could highlight whether the Voth test is, in fact, as inward-looking and plaintiff-friendly as it is widely claimed to be.
An evaluation of the post-Voth forum (non) conveniens cases in Australia indicates that, not only does the Australian court employ the same factors as those which determine Spiliada's application, but it has also, for the most part, conceived of them in effectively the same way. Consider, for instance, how the dispute's governing law is treated under the two tests. Under the Voth doctrine, the law applying to the dispute is one of a number of elements which can influence the court's decision whether to sustain its proceedings.Footnote 70 The fact that a foreign law governs the dispute does not, ipso facto, render the Australian court a clearly inappropriate forum.Footnote 71 Nevertheless, as highlighted in Nygh's Conflict of Laws in Australia,Footnote 72 cases such as Seereederei Baco Liner GmbH v Al Aliyu Footnote 73 and El-Kharouf v El-Kharouf Footnote 74 illustrate that the Australian court is more likely to relinquish its jurisdiction if it concludes that the foreign governing law is too difficult to prove.
Notwithstanding the perception in Australia that the English test ‘tends to push litigation back to the same place whose law will govern the outcome of the dispute’,Footnote 75 the lex causae is ascribed the same significance in the stay-of-proceedings analysis under Spiliada. The following passage in Dicey, Morris and Collins provides a helpful distillation of the treatment of the governing law under the Spiliada doctrine:
if the legal issues [at the heart of the dispute] are straightforward, or if the competing fora have domestic laws which are substantially similar, the identity of the governing law will be of rather little significance. But if the legal issues are complex, or the legal systems very different, the general principle that a court applies its own law more readily than does a foreign court will help to point to the more appropriate forum, whether English or foreign.Footnote 76
Accordingly, similar to the position in Voth, under the Spiliada test, an Arcadian governing law may only lead to the finding that Arcadia is more appropriate to entertain the case if ‘issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues’ in England and Arcadia.Footnote 77 Otherwise, little weight would be attached to the choice of Arcadian law.
There are also similarities in the English and Australian courts’ treatment of pending parallel (or related) proceedings in a foreign forum. Under Voth and Spiliada, the existence of these proceedings is an important (though not dispositive) factor in the courts’ decision whether to exercise its jurisdiction.Footnote 78 Hence, in these instances, the consideration of a broad range of factors enables the English and Australian courts to decide whether to stay or sustain their proceedings. The courts look, inter alia, into the costs incurred by the parties in the foreign proceedings and the stage which those proceedings have reached. There is, prima facie, more likelihood of obtaining a stay, under both doctrines, if the foreign proceedings are at an advanced stage and the parties have incurred considerable costs in the process.Footnote 79 Additionally, the English and Australian courts are more likely to stay their proceedings if there is a stronger connection between the dispute and the foreign forum in which the parallel (or related) proceedings are ongoing. It was, in part, for this reason that the English and Australian courts decided not to exercise jurisdiction in The Abidin Daver Footnote 80 and in Navarro v Jurado Footnote 81 respectively. Finally, the application of both Voth Footnote 82 and Spiliada Footnote 83 has highlighted that in a lis alibi pendens case there would be a weaker prospect of obtaining a stay if the foreign court is unlikely to assume jurisdiction over the dispute. In summary, and like the position regarding the dispute's applicable law, the case law on the treatment of lis alibi pendens cases signifies very little difference in approach in England and Australia.
These similarities in approach are also detectable in the way in which the Australian and English courts take into account availability of witnesses and other evidence when applying Voth and Spiliada.Footnote 84 For instance, in PCH Offshore v Dunn (No 2) Footnote 85 a service-out case commenced by an Australian company against a Scotsman, who was resident in Azerbaijan, the Australian court decided not to exercise jurisdiction because the majority of the witnesses and evidence in the case were based in Azerbaijan. Likewise, in Limit (No 3) Ltd v PDV Insurance Co Ltd, also a service-out case, the English court refused to assume jurisdiction over the Venezuela-based defendant company, inter alia, on the basis that the dispute had a strong connection with Venezuela.Footnote 86
Perhaps the only context in which there is some difference between the weight attributed to the relevant factors is in relation to the way in which the availability of an alternative foreign forum is defined under Spiliada and Voth. The availability of the foreign forum is one of the key elements within Spiliada's first limb and is narrowly defined: the alternative foreign forum is available if it would assume jurisdiction over the dispute.Footnote 87 Under the Voth test, though, availability appears to have a broader scope; it could include situations where the plaintiff's claim has become time-barred in the alternative foreign forum.Footnote 88 Furthermore, over the years, there have been a handful of Australian cases in which judges have made passing remarks, suggesting that the Australian court could stay its proceedings regardless of the availability of another foreign forum to entertain the dispute.Footnote 89 Notwithstanding these pronouncements, and the wider scope ascribed to availability in Australia, it is impossible to identify a reported case in which the Australian court has found itself to be a clearly inappropriate forum, even though no other foreign forum is available to entertain the dispute. Indeed, in her extensive analysis of staying of proceedings in Australia between 1991 and 2001, Professor Keyes found that the Australian court chose to sustain its proceedings where another available foreign forum could not be identified.Footnote 90 In practice, therefore, the English and Australian courts have tended to adopt a similar conception of the availability of the foreign forum: their (non-)exercise of jurisdiction depends, in part, on the existence of another foreign forum which would entertain the dispute.Footnote 91
The discussion in this subsection has highlighted that there are many similarities in the English and Australian courts’ practice of discretionary (non-)exercise of jurisdiction. In applying the Spiliada and Voth tests the courts consult effectively the same factors. Moreover, they generally ascribe the same weight to these factors. In other words, the courts follow virtually an identical set of analysis in deciding whether to assume jurisdiction over a dispute. Consequently, ceteris paribus, the English and Australian courts tend to sustain (or relinquish) their proceedings in similar instances.
B. The Australian Court's Broader Methodological Framework for Reasoning under Voth
Nevertheless, it might be argued that there are other considerations which render the two doctrines different. Indeed, in their joint judgment in Voth, the Justices considered that, under Spiliada, the English court decides on whether to exercise jurisdiction by comparing the advantages of entertaining the dispute in England or remitting it to the more appropriate foreign forum.Footnote 92 They did not, however, favour this approach, stating that the more-appropriate-forum test ‘necessarily involves assumptions or findings about the comparative claims of the competing foreign tribunal, including the standards and impartiality of its members’.Footnote 93 Instead, they preferred a doctrinal formulation which would enable the Australian court to apply its discretion based on its (in)appropriateness, rather than that of a foreign forum.Footnote 94
Prima facie, the rejection of Spiliada, and articulation of the clearly-inappropriate-forum test, point to differences in methodological frameworks within which the forum (non) conveniens doctrine is applied in England and Australia. For instance, in an article in the Melbourne University Law Review Professor Garnett observed that the clearly-inappropriate-forum test ‘focuses only upon the suitability of the local jurisdiction’Footnote 95 and, hence, ‘is unlikely to yield the same results as [the Spiliada test] which takes into account, on a relatively equal basis, the claims of both jurisdictions’.Footnote 96 Similarly, and more recently, Professor Briggs has stated that ‘the Australian courts appear to be of the opinion that it is not appropriate for an Australian court to undertake a comparative evaluation of two courts’.Footnote 97
It is, therefore, important to consider whether there is, indeed, a difference in the broader methodologies which English and Australian judges employ when applying the forum (non) conveniens doctrine. The persuasiveness of the prevailing conception of the Voth test, as being functionally a more restrictive and inward-looking doctrine than its English counterpart, depends on the answer to this question.
The wider methodological setting within which the Spiliada analysis is conducted is, of course, comparative in nature.Footnote 98 In a forum (non) conveniens case the English court is essentially asked to rule on whether it (or another available foreign forum) is more suitable to entertain the parties’ dispute. In responding to this question the English court is reliant on the parties’ submissions. On the one hand, the defendant would seek to convince the English court of the appropriateness of the available foreign forum. On the other hand, the claimant would argue that England is better placed to determine the dispute. In forum conveniens cases the English court is effectively asked to rule on whether it is a clearly (in)appropriate forum for hearing the dispute.Footnote 99 In forum non conveniens cases, the English court is, on the face of things, preoccupied with the assessment of the alternative foreign forum's appropriateness. However, that exercise is conducted relative to the English court's own appropriateness. In this respect, therefore, the English court is inescapably engaged in evaluating the suitability of the available foreign forum and that of its own. Thus, in The Lakhta, for instance, Sheen J's conclusion that Russia was more closely connected to the dispute than England is another way of saying that England was not the claim's centre of gravity and, consequently, was unsuitable to entertain it.Footnote 100
As discussed earlier, ostensibly, the Australian court has always insisted that under the Voth test its sole concern is to evaluate its suitability in asserting jurisdiction over an international-private-law dispute.Footnote 101 Nevertheless, in practice, the Australian court's analysis of its appropriateness is not carried out in a vacuum. For instance, in James Harding and Coy Pty v Grigor Spigelman CJ observed, tellingly, that it was going ‘too far’ to say that under the Voth test ‘in determining inappropriateness of the local forum no process of comparison with the foreign forum should be made’.Footnote 102 Moreover, in the context of lis alibi pendens cases such as Henry v Henry and CSR Ltd v Cigna Insurance Ltd, it has been stated that the Australian court's assessment of whether it is clearly appropriate is premised on a comparison between the local and foreign forums.Footnote 103 Accordingly, the considerations of the (dis)advantages of litigation in the alternative foreign forum are inevitably influential in informing the court's decision on its own suitability to entertain the dispute.
The analysis of the Australian forum (non) conveniens cases supports the argument that, despite pronouncements to the contrary, there are evident comparative elements in the court's methodology for applying the doctrine. In the Voth case itself, for example, it was not until it had entertained and analysed the parties’ competing submissions on the respective (dis)advantages of litigation in Australia and MissouriFootnote 104 that the High Court ruled that the Australian court was clearly inappropriate. In Toop v Mobil Oil New Guinea the Australian court decided to sustain its proceedings after examining the litigants’ competing accounts of the (in)appropriateness of Australia and Papua New Guinea.Footnote 105 Likewise, in Garsec v His Majesty The Sultan of Brunei, a service-out case, McDougall J devoted a sizeable part of his judgment to comparing the (dis)advantages of having the trial in Australia or Brunei before deciding not to exercise jurisdiction.Footnote 106
It is, therefore, difficult to be persuaded that the framework within which the Australian forum (non) conveniens doctrine is applied is not comparative in nature. This conclusion is consistent with Professor Keyes's assessment of the High Court's approach to the application of the forum (non) conveniens doctrine in cases such as Oceanic Sun, Voth and Zhang.Footnote 107 As she observed, when faced with a forum (non) conveniens application lower courts in Australia embark on ‘a comparative balancing exercise in which the connections to the local and foreign forums are listed’.Footnote 108 Consequently, the inescapable conclusion must be that, essentially, the same methodological approach underpins the application of the forum (non) conveniens doctrine in Australia and England.
C. The Implications of Applying the Voth Test
The foregoing discussion has sought to show that there is no clear blue water separating the specific factors based on which the English and Australian courts perform their analysis of the forum (non) conveniens doctrine. Furthermore, the examination of the cases indicates that the broader methodological frameworks within which the Australian and English courts exercise their discretion are hardly distinguishable. They both have comparative elements: under Spiliada, the English court assesses the appropriateness of the available foreign forum to hear the case relative to its own suitability; under Voth, despite insisting otherwise, the Australian court effectively evaluates its own suitability in comparison to that of another available foreign forum.
In these circumstances, it is argued that the Australian court's approach to discretionary (non-)exercise of jurisdiction resembles, mutatis mutandis, that of its English counterpart under Spiliada. In other words, the tests tend to lead to similar outcomes when applied to broadly analogous cases. For example, prior to the Court of Justice's ruling in Owusu v Jackson,Footnote 109 the English court had demonstrated, in In Re Harrods (Buenos Aires) Ltd,Footnote 110 that it would grant a stay in a case brought against an English domiciliary if another available foreign forum was shown to be a more appropriate forum for hearing the dispute. If, as it has been widely accepted, the conceptual gap between the Australian and English doctrines is considered to be so wide as to functionally make Voth a narrower doctrine than Spiliada, then it might be reasonably expected that a case like Harrods would be decided differently in Australia. The decision in Strohschneider v Ehlert (the Estate of Ehlert),Footnote 111 however, suggests otherwise. In this case, a German resident had commenced in personam proceedings against an Australian resident concerning a plot of land in Germany. Notwithstanding the defendant's residence in Australia, and that the court could have heard the case if it had really so wished, the court stayed the proceedings because it did not regard Australia as the most closely connected venue to the dispute (thereby regarding Germany to be that forum).
Consider, also, the Australian court's decision in O'Reilly v Western Sussex Hospitals NHS Trust.Footnote 112 In this service-out case an Australian resident commenced litigation in Australia against a number of English defendants. She alleged that her husband's death from cancer had been caused by the defendants’ negligence in the course of his diagnosis and treatment in England. The plaintiff's limited financial resources, together with the fact that she was caring for her severely disabled son, meant that, on the facts of the case, it was only possible for her to seek redress against the defendants in Australia. These were significant considerations in persuading Studdert AJ to sustain the Australian proceedings, despite the case's prima facie connections with England. If it is indeed the case that Voth is more plaintiff-friendly than its English counterpart, then it should not be unreasonable to expect that a case broadly resembling O'Reilly would be decided differently under Spiliada. This observation, though, is not supported by decisions such as Connelly v RTZ Corporation (No 2).Footnote 113 While Connelly concerned different matters to those in O'Reilly, they are similar in at least one fundamental respect. Not unlike O'Reilly, the plaintiffs in Connelly lacked adequate financial resources to sue the defendants in Namibia, which was the dispute's centre of gravity. This absence of means, inter alia, played a significant role in convincing the English court that it should sustain its proceedings as England was practically the only forum in which the plaintiffs could bring their claims.
In light of the assessment of the sizeable post-Voth case law it is difficult to accept that the apparent conceptual difference between Voth and Spiliada—with the Australian doctrine focusing on the local court's (un)suitability and its English equivalent examining the (in)appropriateness of the foreign court—is wide enough to warrant for the doctrines to be regarded as practically different. Therefore, it is argued that the dominant view within the literature, which considers Spiliada and Voth to be functionally different tests, is unpersuasive.
An assessment of the implications of applying the forum (non) conveniens doctrine in Australia further supports this argument as it illustrates that the application of the Voth and Spiliada tests tends to give rise to broadly similar shortcomings. In particular, and not unlike its English counterpart, Voth has been criticized for its tendency to lead to drawn-out and expensive litigation.
If, in practical terms, the Australian court's discretion under the Voth test had been, in fact, more limited in scope than the English court's under Spiliada, then it would have been reasonable to expect that there would be quicker and more resource-efficient resolutions to Australian forum (non) conveniens disputes. Indeed, when reinforcing the clearly-inappropriate-forum test in their joint judgment, the Justices had predicted that, typically, the first-instance judge would apply the Voth test swiftly, following the counsel's ‘short, written (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours’.Footnote 114
In practice, though, what was foreshadowed by Mason CJ, Deane, Dawson and Gaudron JJ in their joint judgment has not materialized. For example, in Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd, commenting on their prediction in Voth, Palmer J stated that,
a first instance judge should be permitted a wry smile at the advice given by the High Court as to the permissible extent and content of a judgment in ‘an ordinary case’: in the present judicial climate, a judge following that advice would receive a frosty welcome in the Court of Appeal.Footnote 115
Likewise, in Suzlon Energy Ltd v Bangad (No 3) Rares J made the following telling observation on the extent of resources expended in the course of a forum (non) conveniens case:
These applications have involved one day's hearing on preliminary issues culminating in my judgment and orders of 7 October 2011, two days of hearing, about 100 pages of submissions and over 2,000 pages of evidence about which I must now decide.Footnote 116
These are far from isolated examples of lengthy and expensive forum (non) conveniens litigation in Australia.Footnote 117 Strikingly, judges and commentators in England have pointed to identical problems with respect to the operation of the Spiliada doctrine.Footnote 118 It is, therefore, argued that if Voth had in fact had a narrower doctrinal scope than Spiliada, these problems with its application would not have arisen to the same extent (or at all).
V. CONCLUSION
In their joint judgment in Voth, almost immediately after endorsing the clearly-inappropriate-forum test, the Justices emphasized that the conceptual difference between it and the Spiliada doctrine would manifest itself in those instances where ‘it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one’.Footnote 119 Since then, a literal reading of this passage by judges and commentators (in Australia and other common law jurisdictions) has come to define the Australian forum (non) conveniens doctrine as being functionally different from its English counterpart. However, this prevailing conception is not only open to question but is also, on closer inspection, ultimately unpersuasive.
As the analysis in this article has sought to demonstrate, the application of the Voth test has not led to the emergence of a body of precedent which denotes significant practical divergences in the English and Australian courts’ application of the forum (non) conveniens doctrine. In deciding whether to exercise jurisdiction both courts consider and analyse the same factors, ascribing to them the same weight. Moreover they perform this analysis within comparative methodological frameworks which are virtually indistinguishable. The lack of practical difference between Voth and Spiliada is further supported by the fact that their application exposes almost identical shortcomings in the two doctrines.
In sum, judges and commentators have been too quick to adopt a literal reading of the judgment in Voth. Conceptually, there may be a narrow difference between the assessment of the appropriateness of the local forum under Voth, on the one hand, and the foreign forum under Spiliada, on the other. Nevertheless, this difference—in the theoretical case in which the foreign forum is more appropriate, but the local forum is not clearly inappropriate—is so small that it is practically non-existent, essentially, rendering Voth and Spiliada two sides of the same coin.
