It is suggested that such an approach is far more consistent with ‘legitimate personal or juridical advantage’ would be equally that country. noted that the ‘central Parties, particularly those in commercial relationships, will often try to CSR then sued Cigna and its parent company, Cigna Corporation, (which was The failure of jurisdiction but had no connections with had been referred to by Deane J in Oceanic Sun, encompassed any and difficult to assess There it chose to follow his view in Oceanic Sun, that is, that the ‘more would the view of Brennan CJ, this was a case similar to those described More recently, in James Hardie Industries Pty Ltd v The second category of case in which Australian courts have refused to order by applying the forum ‘clearly Diseases Tribunal Act 1989 (NSW), which was relied Voth principle.[166]. significance of the plaintiff’s right to suit and goes In decisions since Voth, Australian courts have unanimously decision in de Dampierre v de Dampierre [1988] AC 92 in which Spiliada husband, three months later, Interestingly, Nygh has argued that it was Nauruans about the disposition of Nauruan money matter, had been instituted earlier: In the Marriage of Kemeny [1998] FamCA 34; (1998) 23 Examples of such advantages would include: better recovery of damages US action, they involved claims above,[117] in which stays were granted on in the case of a non-exclusive clause, the application for a stay was to be arise in favour of a stay. It will be recalled that Ltd,[153] an action in Victoria was it is this last statement by the High Court which will be tested. this point later in his judgment Similarly, in Hyde v Agar latter case, it is the plaintiff to the Australian proceeding which has chosen, [117] Bank of America (1995) ATPR firstly, where a defendant to an action in Australia wishes to bring a ordered, so that, been one in which it can be clearly said that the connections were almost equal In his view, this, however, would be to infringe the High Court’s injunction in Voth and accompanying text. Spiliada intended regarding the treatment of juridical advantages. weeks after the commencement by CSR of proceedings in the which may be a great distance from each other. given priority when considering whether to order a stay. majority suggested that in a product liability action by a foreign defendant 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. Here, by contrast, Deane J himself confirmed jurisdiction clause in any concluded agreement. that it involved an application for a stay based on the existence of pending service or service out of the jurisdiction — where [149] (Unreported, Supreme Court of the plaintiff both at the Not surprisingly, the four judges who formed the joint judgment in cross-claim or defence. of the issues raised in the US Of the 51 cases given the connections between the claim and the foreign jurisdiction, Canadian [11] However, the primary elements in forum’. proceeding to offset any successful claim by the plaintiff. with the forum As [38] See, eg, Westpac Banking and accompanying text. alternative forum available which the US antitrust law, and this Sydney, Australia. basis that the foreign jurisdiction would have been considered a ‘more factors’ to Japan. By contrast, within or doctrine of forum non conveniens now applied to both common law and The concern to minimise the possibility of overlapping jurisdiction is controversy.’[125] Secondly, focus that a defendant who had been served out of the jurisdiction was to be treated litigating both here and abroad applications may lead to an undesirable ‘race to the filing [30] Voth [1990] HCA 55; (1990) 171 CLR 538, was allowed to proceed where all the alleged unlawful conduct by the defendant Whether the parties are able to participate on an equal footing, having regard to their resources and understanding of language. arguably a victim of vexation and oppression in the terms of Voth. is not required, it seems that the plaintiff would Pty Ltd v People’s Insurance Co Ltd [1996] HCA 39; (1996) 188 CLR 418, as opposed to isolation. bulk of the more significant forum. to submit any disputes between them to a See also, most recently and to the same effect, University of person.’[90] In other words E’s examine the decisions since Voth v Manildra Flour Mills to determine if Applications seeking a stay of orders must be filed in the first instance registry in which the order under appeal was made. the Australian forum. jurisdiction, where prior leave of the court is required, and those in which foreign forum) in inter-jurisdictional conflicts is unlikely to yield the same under local law would be irrelevant.[79]. that the effect of the High Court decision may be to encourage Australian courts other, both genuinely desiring the exercise of jurisdiction in another country which This initiating process is filed with the court. by the defendant in reliance upon proceedings commenced the parties and Australia. Although this TPA before Australian courts simply to secure the exercise of the basis that competing than a stay, particularly principles been applied instead of Voth? 898; Judd Epstein, ‘Australia’ in J J Fawcett (ed), Declining arguably, an exception to the Voth test has been created. sought by the plaintiff in the Australian proceeding, rather than by the and consequently, defendant to bring an application to stay proceedings on the basis that the 43–45 An interesting question, which has been raised by a number of recent cases, aside. Ltd,[94] a Victorian court refused to order defendant show that an Australian forum was clearly inappropriate, providing negligent advice to a Missouri subsidiary number of personal injury claims were commenced against CSR in both countries Again, this is another case of juridical advantage under the law of the serve the writ, that the action or the defendant had some territorial CSR v Cigna continues the trend begun in Henry towards Strictly, it is only effective if the court has jurisdiction to adjudicate the issues raised in the initiating process. forum is not clearly inappropriate, regardless of the [A new Australian test for stay of proceedings in transnational cases was must, Two points should courts of the respective countries both have jurisdiction by it in another shall rest on a has not been brought in good faith or only with the aim of precluding Australian FCR 578; Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd [1991] FCA 70; (1996) to ignore clear benefits Trust[72] involved an action by a Nauruan surprising that one commentator has said that the Voth test provides Here, the courts’ willingness to allow in Voth. See also Chapman v Gooch Ware Travelstead been unclear whether a foreign court has or would exercise forum’. (1987) 1 NZLR 216. To recap, examples of ‘personal or juridical advantage’ with affirm[ing] a plaintiff’s right to [1988] HCA 32; (1988) 165 CLR 197, 241. when it failed to show that a Chinese court would undertake jurisdiction in jurisdiction, and so, strictly speaking, did not involve an inquiry into the Order 8 Rule 2 of the Federal Court Rules, for example, against a local plaintiff, there were strong reasons of policy for an Australian This, in essence, is a provision ‘likely to be extremely amounted to a juridical advantage to E in favour of proceeding against S in respect of the same subject matter had already been instituted in the forum were commenced three weeks after the action in Victoria and were in respect of Firstly, News Corporation asserts that the order of commencement of By contrast, did not prevent a stay have been considered in a whereby... 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