HIGH COURT OF AUSTRALIA
Mason C.J., Brennan, Deane, Dawson, Toohey and Gaudron JJ.
VOTH v. MANILDRA FLOUR MILLS PTY. LTD.
(1990) 171 CLR 538
13 December 1990
Practice—Action—Stay—Action brought in Australian State for damages for negligent accounting advice given in foreign country—Loss suffered there and in Australian State—Place of commission of tort—Forum non conveniens—Appropriate forum.
MASON C.J., DEANE, DAWSON AND GAUDRON JJ. This appeal is a sequel to the decision in Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR 197 where this Court by majority (Brennan, Deane and Gaudron JJ.; Wilson and Toohey JJ. dissenting) declined to apply in Australia the principles governing the doctrine of forum non conveniens stated by the House of Lords in Spiliada Maritime Corp. v. Cansulex Ltd. (1987) AC 460.
The nature of the respondents' case and the history of the proceedings in the courts below
2. The facts are succinctly related in the judgment of Gleeson C.J. in the New South Wales Court of Appeal. The two respondents (plaintiffs) are companies incorporated and resident in New South Wales. The appellant (defendant) is an accountant who is and was at all material times a citizen and resident of the United States of America, practising in the State of Missouri. He is a member of a partnership named Deloitte Haskins and Sells. It is a firm which is separate and distinct from an Australian firm of accountants of the same name, although some form of association exists between the two firms.
3. The respondents sue for damages for professional negligence. They assert that the Supreme Court of New South Wales has jurisdiction to entertain the action because the respondents suffered some or all of the relevant damage in that State. The appellant's contention that the Supreme Court of New South Wales lacked jurisdiction to entertain the action, which was rejected both at first instance and by the Court of Appeal, is no longer pursued in this Court. Accordingly, we need not concern ourselves with what the Court of Appeal had to say on that topic. It is sufficient to say that the proceedings fall within Pt 10, r.1(1)(e) of the New South Wales Supreme Court Rules, which provides for the service of originating process outside the State "where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring": see Flaherty v. Girgis (1987) 162 CLR 574.
4. On 17 March 1986 an order was made giving the respondents leave to serve the statement of claim outside the State of New South Wales and in the State of Missouri, United States of America. The appellant, having filed a conditional appearance to that statement of claim, moved to have the statement of claim or the service of it set aside and sought an order discharging the earlier order giving leave to serve outside the jurisdiction and, in the alternative, an order that the proceedings be stayed pending determination of the issues between the parties in a court of appropriate jurisdiction in the United States. Before the motion was heard and determined by Clarke J., the respondents amended their statement of claim and provided particulars. Clarke J. dismissed the motion with costs. An appeal to the Court of Appeal (Gleeson C.J. and McHugh J.A.; Kirby P. dissenting) was also dismissed with costs: (1989) 15 NSWLR 513.
5. As Gleeson C.J. pointed out, the precise nature of the respondents' claims is less than completely clear, though written submissions were filed in the Court of Appeal with a view to providing further elucidation. Each respondent sues for damages for the tort of negligence. The damages claimed are alleged to have been suffered by the respondents as a result of negligent acts and omissions by the appellant in the course of his practice as an accountant in Kansas City, Missouri. Neither respondent claims to have been a client of the appellant.
6. The respondents are members of a group of companies, known as the "Manildra Group", which carry on business related to the manufacture and sale of starches and starch products and are controlled by members of the Honan family. The activities of the Group extend beyond Australia. At all material times the first respondent was the principal operating company in the Group.
7. Neither respondent, according to the evidence, carries on business in the United States. The Group's operating company there was Manildra Milling Corporation ("MMC"), a corporation established under the laws of the State of Kansas. MMC is a wholly-owned subsidiary of the second respondent and it was to MMC that the appellant, in the ordinary course of his professional practice, provided accounting, auditing and related services.
8. Between 1976 and 1983 members of the Manildra Group sold starches and starch products to MMC which resold them in the United States. As a result, MMC became indebted to the first respondent and became obliged to pay it, or credit it with, interest. So much was common ground between the parties.
9. During the period in question, the Internal Revenue Code of the United States imposed upon the first respondent liability to income tax in respect of the interest income derived by it from MMC and also imposed an obligation upon MMC to deduct and withhold the tax upon interest paid by it to the first respondent. This again was common ground. MMC was described in the amended statement of claim as being in this respect a "withholding agent". Failure to account to the Inland Revenue Service ("the IRS") for withholding tax exposed the "agent" to an obligation to pay interest on the tax, being interest in the nature of a penalty, until payment. The respondents claim that, under the Australian revenue laws, had MMC accounted to the IRS for withholding tax under the Internal Revenue Code, the interest which MMC paid to the first respondent would have constituted exempt income in the hands of that respondent.
10. As it happened, MMC did not make the required deductions and payments of withholding tax between 1976 and 1983. The respondents assert that this omission was the fault of the appellant or those for whom he was responsible. In 1984 the appellant's firm discovered the omission. It was decided that the withholding tax and penalty interest should be paid to the IRS.
11. The first respondent's case is that the appellant, or those for whose conduct he is responsible, acted without due care in failing to draw the attention of MMC, and of the other companies in the Manildra Group, to the requirement to pay withholding tax on MMC's interest payments to the first respondent. That omission had two relevant consequences for the respondents in relation to liability to Australian income tax. First, the interest in question was treated as assessable income of the first respondent, when it should have been treated as exempt income. This resulted in an overpayment by the first respondent which, it is alleged, is irrecoverable. Secondly, the second respondent in some of the years in the relevant period, if matters had been dealt with properly, would have shown tax losses and would have been able to carry those losses forward into future years. It is also alleged that the overstatement of income resulted in the distribution to shareholders of more than would otherwise have been distributed by way of dividend.
12. As Gleeson C.J. expressed it, the respondents allege that the appellant owed a duty of care to the first respondent in respect of the services which he rendered to MMC and that his conduct fell below the professional standards appropriate to that duty of care, resulting in the damage already described. Apart from that damage, the respondents allege that the first respondent incurred liability to the IRS for penalty interest. The contention is that both MMC and the first respondent became liable to pay the penalty, that MMC discharged the liability by making the payment, and that the first respondent thereupon became liable to reimburse MMC, the "withholding agent", and did so by crediting MMC in the books of the first respondent with the amount in question. The respondents concede that this part of the first respondent's damage should be treated as having been suffered in the United States.
13. Relevant to the claim that part of the respondents' damage was suffered in New South Wales is the claim that the first respondent relied upon advice given by the appellant, in connection with the affairs of MMC, in preparing its own accounts and income tax returns, and that damage resulted.
14. MMC was at all material times a wholly-owned subsidiary of the second respondent. It is on that foundation that the second respondent claims that the appellant owed a duty of care to it. Particulars of the damages claimed by the second respondent for breach of that duty are set out in a document entitled "Explanation of Losses Claimed by the Second Named (Respondent)". It states:
"(Item 1) - $196,414 - Income tax overpaid. At all material
times the (second respondent) was the holding company of the
members of the Manildra Group of Companies. In the years
1976 to 1984 the affairs of the members of the group were
arranged so as to (where possible) minimise the income tax
payable by group members. If the (second respondent) had
been informed prior to 1 December 1983 that interest payable
by MMC was exempt income for the purposes of the Income
Tax Assessment Act 1936, the (second respondent) and its
advisors would have caused advances to be made to MMC by
companies in the group which could have taken advantage
of such exempt income namely companies which had no carry
forward tax losses against which such exempt income was
required to be set off pursuant to s 80(2) of the Income
Tax Assessment Act. The loss to the (second respondent)
as a result of such steps not having been taken amounted to
$196,414 such loss representing the amount which would have
been claimed by the (second respondent) by way of dividends,
in respect of which a rebate would be obtained from its
subsidiaries had such steps been taken (sic). Had these
steps been taken, the assessable income of group members
would have been reduced as would the group income taxes
paid. The sum of A$196,414 represents the difference
between the taxes actually paid by members of the group in
the relevant year (excluding the (first respondent)) and
the taxes that would have been paid had the steps referred
to above been taken.
(Item 2) - $110,097 Because of the overpayment of income
taxes of A$196,414 in the years 1976 to 1984, the (second
respondent) as group holding company incurred interest
on funds made available to pay such taxes which were
unnecessarily paid. The sum of A$110,097 is the cost of
providing the income taxes overpaid calculated on the bank
overdraft rates applicable to the (second respondent) over
the period from 31 March 1978 to 30 September 1985.
(Item 3) - $185,955 Of the exempt income received in 1979
to 1983 $404,249 was offset against losses incurred by the
(first respondent). Had such losses not been so offset but
made available to other companies in the group pursuant to
s 80G of the Income Tax Assessment Act the group taxation
liability would have been reduced by $185,955. This amount
would otherwise have been available to the (second respondent)
in a similar fashion to the sum referred to in Item 1."
The statements of the respective damage suffered by the two respondents may involve an element of overlapping or alternative claims, but it is unnecessary for present purposes to be precise about this aspect of the matter.
The decision at first instance (Clarke J.)
15. Clarke J. applied the principles expounded by the House of Lords in MacShannon v. Rockware Glass Ltd. (1978) AC 795 as expressed by Yeldham J. in Garseabo Nominees Pty. Ltd. v. Taub Pty. Ltd. (1979) 1 NSWLR 663, at pp 667-668, in these terms:
"(1) that a mere balance of convenience is not a sufficient
ground for depriving a plaintiff of the advantage of
prosecuting his action in the forum, if it is otherwise
properly brought; (2) that in order to justify a stay
(a) the defendant must satisfy the Court that there is
another forum, to whose jurisdiction he is amenable, in which
justice can be done between the parties at substantially less
inconvenience and expense; (b) and such stay must not deprive
the plaintiff of a legitimate personal or juridical
advantage which would be available to him, if he invoked
the jurisdiction of the court in which the stay is sought".
16. Applying these principles, Clarke J. concluded that, although Missouri was the natural forum, the respondents had reasonable justification for resorting to the local jurisdiction. After reviewing the circumstances, his Honour went on to decide that the factors in favour of the maintenance of the litigation in Missouri were not such as obviously to outweigh the factors in favour of allowing the litigation to remain in New South Wales, and to determine, alternatively, that the granting of a stay would operate to deprive the respondents of a legitimate juridical advantage in relation to the measure of damages and the awarding of costs in Missouri.
The later decisions in Spiliada and Oceanic Sun
17. In Spiliada, which was decided after Clarke J. delivered his judgment in this case, the House of Lords discarded the principles which it had previously affirmed in MacShannon. Lord Goff of Chieveley (whose speech commanded the assent of the other Law Lords) observed (at p 477) that the burden resting on the defendant seeking a stay "is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum". His Lordship described the "natural forum" as being "that with which the action had the most real and substantial connection" and identified the relevant "connecting factors" pointing to the existence of some other forum as the natural forum as including "not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction ..., and the places where the parties respectively reside or carry on business": at p 478. In the event that there is no other available forum which is clearly more appropriate for the trial of the action, the court will ordinarily refuse a stay. If, however, there is some other available forum which prima facie is clearly more appropriate to the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted.
18. Subsequently, and before the appeal was heard by the Court of Appeal, the judgment in Oceanic Sun was also delivered. In that case, the respondent, a resident of Queensland, sued the appellant in the Supreme Court of New South Wales for damages for negligence in respect of personal injuries sustained whilst he was a passenger on a tourist ship in Greek waters. The appellant was a company incorporated in Greece and was the owner and operator of the ship, which was registered in Greece. Its port of both departure and destination was also in Greece. The respondent had initially sued the appellant in New York where the action had been stayed on the ground of forum non conveniens. The respondent then obtained leave from the Supreme Court of New South Wales to serve his writ outside the jurisdiction on the basis that he had suffered injury within New South Wales caused by the tort. The contract of carriage was entered into in that State. In these circumstances the majority held that the primary judge's refusal to grant a stay and dismiss the action on the ground of forum non conveniens, upheld by the New South Wales Court of Appeal, should stand. Although the minority considered that Spiliada should be followed, with the consequence that a stay should be granted and that Greece was the natural and most appropriate forum, the majority declined to follow the approach adopted in Spiliada.
The decision of the Court of Appeal in this case
19. In the Court of Appeal in the present case, Gleeson C.J. and McHugh J.A. concluded that the majority approach in Oceanic Sun required refusal of the stay. Gleeson C.J. observed (at p 528) that "the majority re-asserted what had long been regarded as the law in this country" and cited the following passage from the judgment of Deane J. in Oceanic Sun:
"A party who has regularly invoked the jurisdiction of
a competent court has a prima facie right to insist upon its
exercise and to have his claim heard and determined. ...
In this country, (certain) special categories of case have
not traditionally encompassed a general judicial discretion
to dismiss or stay proceedings in a case within jurisdiction
merely on the ground that the local court is persuaded that
some tribunal in another country would be a more appropriate
forum." (at p 241)
The unanimous decision of this Court in Maritime Insurance Co. Ltd. v. Geelong Harbor Trust Commissioners (1908) 6 CLR 194 provides long-standing authority for that proposition.
20. Gleeson C.J. then noted that the majority in Oceanic Sun expressed differing views as to the formulation of the principle to be applied. His Honour, having noted those differing views, concluded (at p 529) that the majority approach in Oceanic Sun would "result in the present case in a refusal of a stay of proceedings on the general basis of forum non conveniens". The considerations leading to his conclusion were:
"The plaintiffs are local residents. The case does not
involve what could properly be described as 'forum
shopping'. The facts of the case have a significant
connection with the local jurisdiction. Part of the damages
were incurred here. It is at least strongly arguable that
the causes of action arose in New South Wales, and that the
torts complained of were committed in this jurisdiction. It
is, also, strongly arguable that the substantive law of tort
relevant to the resolution of the disputes will be the law
of New South Wales. On any view of the matter the revenue
law of Australia will be of particular importance in this
case. The dispute is trans-national in character, and it is
inappropriate to describe the State of Missouri as 'the
natural forum' for the resolution of the dispute." (at p 529)
The passage just quoted needs to be read with an earlier statement made by his Honour in these terms:
"(I)t cannot be denied that, whatever the substance of
the claim might ultimately be shown to be, the claim as
pleaded is based at least in large part upon negligent
representations received and acted upon in New South Wales
and causing damage here. To describe what is involved
as 'a foreign tort' is at the very least a dangerous
over-simplification, and a description of the State of
Missouri as 'the natural forum' is not easy to reconcile
with what Goff L.J. said in (The "Albaforth" (1984) 2
Lloyd's Rep 91)." (at p 523)
21. Gleeson C.J. also noted that there was a further dimension to the case arising out of the circumstance that it involved an exercise of the Supreme Court's "extended", "assumed" or "exorbitant" jurisdiction in that the respondents were given leave to serve the writ out of the jurisdiction. However, it did not become material for his Honour to explore this matter because the appellant did not contend before the Court of Appeal that there was any material difference between the test to be applied in considering his application for a stay of proceedings based upon considerations of forum non conveniens and that to be applied in considering his application directed at setting aside the grant of leave to serve out of the jurisdiction.
22. For somewhat similar reasons, McHugh J.A. considered that the appellant had failed to establish that the Supreme Court of New South Wales "is so inappropriate or unsuitable for determining the action that it would work a serious injustice" on the appellant in the sense explained by Deane J. in Oceanic Sun: at p 540. His Honour noted that the primary judge had found that the institution of the proceedings in New South Wales gave the respondents two legitimate personal or juridical advantages which they would not have if the action was heard in Missouri. His Honour was of the view that neither New South Wales nor Missouri was the exclusive natural forum.
23. Kirby P., dissenting, made plain his personal preference for the Spiliada test but accepted the appropriate test to be that stated by Deane J. in Oceanic. Acknowledging that sensitivity to what is "clearly inappropriate" will necessarily differ from one judge to another, his Honour held that, on the facts of this case, it was clearly inappropriate that the respondent be permitted to invoke the jurisdiction of the Supreme Court of New South Wales.
The issue in this Court
24. The appellant's case in this Court is that Oceanic Sun should be reconsidered, that the approach accepted in Spiliada should be adopted on the stay application and that in any event that approach should be adopted in applications for leave to serve originating process outside the jurisdiction and in applications to set aside service so made. Alternatively, the appellant submits that, even on the "clearly inappropriate forum" test, the appellant is entitled to a stay.
25. The absence of a clear majority in Oceanic Sun for the adoption of a particular principle or a set of particular principles governing the grant or refusal of a stay led Wilson and Toohey JJ. to observe (at p 220):
"It is apparent that the decision of the Court, while
resolving the immediate dispute between the parties, does
not yield a precise and authoritative statement of the
principles that should be applied in dealing with an
application to stay proceedings. That statement must await
Since their Honours made that statement, applications for a stay have continued to come before the courts, at least three of them reaching an intermediate court of appeal: see Wallace, "Conflict of Laws", An Annual Survey of Australian Law 1989, p 197, n.39. Although the courts in these cases have applied the "clearly inappropriate forum" test, the application of that test has given rise to disagreement and disconformity, particularly in cases where leave has been granted to serve originating process outside the jurisdiction: compare, for example, the judgment of the Full Court of the Supreme Court of Western Australia in Freckmann v. Pengendar Timur Sdn Bhd (1989) WAR 62 with that of Gleeson C.J. in the Court of Appeal in this case. In these circumstances it has become desirable that we reconsider the problem generally and, to enable that reconsideration to take place, the matter has been fully argued. Moreover, the divergence of opinion manifest in Oceanic Sun makes it important that this Court by its decision in this case enunciate authoritatively the principles and criteria to be applied by Australian courts in future cases. With that end in view, we have put aside individual differences of emphasis in order to participate in this majority judgment.
The authority of the Maritime Insurance Case
26. The appellant's challenge to Oceanic Sun is by way of an attack upon Maritime Insurance which was a foundation stone in the majority reasoning in Oceanic Sun. According to the appellant's argument, Maritime Insurance rested simply on an acceptance of what Sir Gorell Barnes P. had said in Logan v. Bank of Scotland (No. 2) (1906) 1 KB 141, as elaborated by Warrington J. in Egbert v. Short (1907) 2 Ch 205, at p 213. The appellant further submits that Logan has been discarded in England in the course of the reformulation of the relevant principles undertaken by the House of Lords, beginning with The "Atlantic Star" (1974) AC 436, continuing through MacShannon and The "Abidin Daver" (1984) AC 398 and ending, for the time being at any rate, with Spiliada.
27. It must be acknowledged that the judgment of Griffith C.J. (with whom Barton, O'Connor and Higgins JJ. agreed) in Maritime Insurance proceeded upon an acceptance of Logan which itself reflected the principles established by the course of judicial decisions in England in the nineteenth century. It must also be acknowledged that the approach for which Logan stands as authority is, as the appellant contends, no longer received doctrine in England. However, in Australia, the authority of Maritime Insurance has not been undermined by any comparable development. Indeed, Gibbs J. in Cope Allman (Australia) Ltd. v. Celermajer (1968) 11 FLR 488 applied Maritime Insurance and, in refusing a stay, observed (at pp 492-493):
"However, the question that I am bound to pose to
myself is not simply, 'Which is the more convenient forum?'
The principles to be applied in such a case as this were
laid down by the High Court in Maritime Insurance Co. Ltd.
v. Geelong Harbor Trust Commissioners. At p 198 Sir Samuel
Griffith, whose judgment was concurred in by the other
members of the court, said: 'I will read one or two
passages from the judgment of the President, Sir Gorell
Barnes, in which the other members of the Court of Appeal
concurred, in Logan v. Bank of Scotland (No. 2). He said:
"The court should, on the one hand, see clearly that in
stopping an action it does not do injustice, and, on the
other hand, I think the court ought to interfere whenever
there is such vexation and oppression that the defendant
who objects to the exercise of the jurisdiction would be
subjected to such injustice" (I interpolate there the words
supplied by Warrington J. in Egbert v. Short) "in defending
the action that he ought not to be sued in the court in
which the action is brought, to which injustice he would
not be subjected if the action were brought in another
accessible and competent court"'",
and went on to say (at p 494):
"Before I may decline to exercise jurisdiction and deny to
the plaintiff its prima facie right to proceed in this Court
I must be satisfied that there would be something amounting
to vexation, oppression or injustice to the defendants. I
am not so satisfied."
28. True it is that, prior to Oceanic Sun, there were some decisions at first instance in which judges applied the English cases. Nonetheless, it remains correct to say that Gibbs J.'s judgment has been generally considered to reflect what the law of Australia was before Oceanic Sun. There may, however, have been a different understanding in Victoria as a result of the decision of Hudson J. in Lewis Construction Co. Pty. Ltd. v. Tichauer S./A. (1966) VR 341, where his Honour applied the more appropriate forum test in refusing an application to set aside service outside the jurisdiction.
29. Of course, it is a rather artificial and arid exercise to look at Maritime Insurance, a decision now eighty-two years old, in isolation, for the purpose of deciding whether it should be overruled or discarded so that we can start with a clean slate. The concepts referred to in the judgment of Griffith C.J. and in the judgment of Sir Gorell Barnes P. in Logan were examined in Oceanic Sun, as well as in the English cases, with a view to ascertaining whether those concepts disclosed a set of sound legal principles or would enable such a set of principles to be evolved. Unfortunately, that examination has generated a sharp divergence of opinion.
The judgments in Oceanic Sun
30. Before we refer to the judgments of the majority in Oceanic Sun, we should state very briefly what we take to be the common ground between them. First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised "with great care" or "extreme caution".
31. The two substantial points of departure between Brennan J. on the one hand and Deane and Gaudron JJ. on the other hand may be shortly summarized.
(1) There was a difference of opinion about the content of the
adjectives "oppressive" and "vexatious". Brennan J. considered
that they should be understood in the rather strict sense stated
by Lord Kilbrandon in The "Atlantic Star", at p 477. However,
Deane J. agreed with the caution uttered by Lord Wilberforce in
The "Atlantic Star", at p 464, against construing "oppressive"
and "vexatious" too rigidly in the context of dismissing or
staying an action on inappropriate forum grounds. His Honour
said that "'oppressive' should, in this context, be understood
as meaning seriously and unfairly burdensome, prejudicial or
damaging while 'vexatious' should be understood as meaning
productive of serious and unjustified trouble and harassment"
(at p 247). His Honour also took the view that the words should
be read as describing and characterizing the objective effect,
on balance, of a continuation of the proceedings and a particular
forum as the venue of proceedings rather than as describing the
conduct of the plaintiff in selecting or persisting with that
forum. Gaudron J., at p 266, stated her agreement with the test
stated by Deane J., subject to a qualification to which we shall
refer later in these reasons.
(2) This meant that there was a difference of opinion about the
principles enunciated by Scott L.J. in St. Pierre v. South
American Stores (Gath and Chaves) Ltd. (1936) 1 KB 382. His
Lordship said (at p 398):
"The true rule about a stay ... may I think be
stated thus: (1.) A mere balance of convenience is not
a sufficient ground for depriving a plaintiff of the
advantages of prosecuting his action in an English Court
if it is otherwise properly brought. The right of access
to the King's Court must not be lightly refused. (2.) In
order to justify a stay two conditions must be satisfied,
one positive and the other negative: (a) the defendant
must satisfy the Court that the continuance of the action
would work an injustice because it would be oppressive or
vexatious to him or would be an abuse of the process of the
Court in some other way; and (b) the stay must not cause an
injustice to the plaintiff. On both the burden of proof is
on the defendant. These propositions are, I think,
consistent with and supported by the following cases:
McHenry v. Lewis ((1882) 22 ChD 397); Peruvian Guano Co.
v. Bockwoldt ((1883) 23 ChD 225); Hyman v. Helm ((1883)
24 ChD 531); Thornton v. Thornton ((1886) 11 PD 176);
and Logan v. Bank of Scotland (No. 2) (at pp 150, 151)."
(3) There was a related difference of view about the nature of the
judicial function in dismissing the action or in granting or
refusing a stay. Thus, Brennan J., given the strict sense in
which he understood the adjectives "oppressive" and "vexatious",
was able to say that the principles enunciated by Scott L.J. in
St. Pierre, at p 398, had "a narrow and precise operation" (at
p 233). On the other hand, Deane J., looking to a wider range of
potentially relevant factors, saw the function as involving "a
subjective balancing process in which the relevant factors will
vary and in which both the question of the comparative weight
to be given to particular factors in the circumstances of a
particular case and the decision whether the power should
be exercised are matters for individual judgment and, to a
significant extent, matters of impression" (at pp 247-248). In
the result, Deane J. concluded (at p 248) that a defendant would
discharge the onus of proof which rested on him if he established
that, having regard to the circumstances of the particular case
and the availability of the foreign tribunal, the local court
is a clearly inappropriate forum for the determination of the
dispute. The continuation of the proceedings in that forum would
then be oppressive or vexatious.
Gaudron J., whilst agreeing with the "clearly inappropriate
forum" test, considered that the "selected forum should not be
seen as an inappropriate forum if it is fairly arguable that the
substantive law of the forum is applicable in the determination
of the rights and liabilities (including the extent of liability)
of the parties": at p 266.
Comparison between the "clearly inappropriate forum" test and the traditional test
32. The content of the "clearly inappropriate forum" test is more expansive than the traditional test applied by Brennan J. The former test, unlike the latter, recognizes that in some situations the continuation of an action in the selected forum, though not amounting to vexation or oppression or an abuse of process in the strict sense, will amount to an injustice to the defendant when the bringing of the action in some other available and competent forum will not occasion an injustice to the plaintiff. Thus, in order to obtain a legitimate advantage, the plaintiff may commence an action in the selected forum though the subject-matter of the action and the parties have little connection with that forum and the defendant may be put to great expense and inconvenience in contesting the action in that forum. On the application of traditional principles, a stay would be refused in such a case, notwithstanding that the selected forum was a clearly inappropriate forum. Since the traditional test is apt to produce such an extreme result, the "clearly inappropriate forum" test is to be preferred to the traditional test. In this respect, it is significant that the traditional test is no longer applied in the United Kingdom, New Zealand, Canada or the United States.
Comparison between the "clearly inappropriate forum" test and the "clearly more appropriate forum" test
33. Likewise, in England, the movement away from the traditional principles to the adoption in Spiliada of the "clearly more appropriate forum" test began with a recognition that those principles did not always produce acceptable results and that the key to the solution of the problem was to be found "in a liberal interpretation of what is oppressive on the part of the plaintiff", to use the words of Lord Reid: see The "Atlantic Star", at pp 453, 454. From this beginning, Lord Diplock restated the traditional principles and, in restating them, required the defendant to satisfy the court that there is another forum (the "natural forum") in which justice can be done between the parties at substantially less inconvenience or expense: see MacShannon, at p 812. That restatement has since given way to the Spiliada formulation in which the "natural forum" and "more appropriate forum" are treated as interchangeable expressions: see Spiliada, at p 477. The natural forum has been understood to mean "that with which the action (has) the most real and substantial connection": The "Abidin Daver", at p 415.
34. From an abstract (and international) standpoint there is much to be said for the "more appropriate forum" test. It is designed to ensure that the cause of action is litigated in the natural or more appropriate available forum and litigation in that forum will generally reflect the balance of convenience between the parties. The justification for the selected forum declining to exercise its jurisdiction is that it defers to the exercise of jurisdiction by another available and more appropriate forum.
35. But it is important to recognize that the actual question posed for decision by Spiliada is: what is the natural and appropriate forum in the sense already discussed? In the light of all the potential factors which may be relevant to the resolution of that question, it is in some cases a question by no means easy to answer, particularly at an interlocutory stage of proceedings. Indeed, it is desirable to discourage the litigation of such a difficult issue as an interlocutory question by means of what has been described as a war of affidavits. The complexity of modern transnational transactions and relationships between parties is such as to indicate that in a significant number of cases there is more than one forum with an arguable claim to be the natural forum, that is, the forum with which the action has the most real and substantial connection.
36. The "clearly inappropriate forum" test is similar and, for that reason, is likely to yield the same result as the "more appropriate forum" test in the majority of cases. The difference between the two tests will be of critical significance only in those cases - probably rare - in which 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. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum.
37. The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one. But such a decision neither turns upon an assessment of the comparative procedural or other claims of the foreign forum nor requires the formation of subjective views about either the merits of that forum's legal system or the standards and impartiality of those who administer it. Indeed, circumstances could well exist in which the local court was a clearly inappropriate one notwithstanding that there was no other tribunal which was competent to entertain the particular proceedings: e.g., a claim for damages for injury in a road accident in circumstances where the courts of the only country with which the parties or the accident had any real connection were denied jurisdiction to entertain any such claim by reason of the express provisions of a general legislative scheme providing for limited benefits and compensation for all road accident victims from public funds.
38. In contrast, a conclusion that some suggested foreign tribunal is, in the judgment of the local court, the appropriate or more appropriate forum necessarily involves assumptions or findings about the comparative claims of the competing foreign tribunal, including the standards and impartiality of its members. Thus, Lord Goff recognized in Spiliada (at p 478) that one factor to be considered in determining whether a stay should be granted under the Spiliada test "can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction". In a context where the relevant test will fall to be applied in accordance with the individual perception of a primary judge, the courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local judge will have both knowledge and experience than to a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal of which he or she is likely to have little knowledge and no experience.
39. Moreover, there are powerful policy considerations which militate against Australian courts sitting in judgment upon the ability or willingness of the courts of another country to accord justice to the plaintiff in the particular case. Those policy considerations are not dissimilar to those which lie behind the principle of "judicial restraint or abstention" which ordinarily precludes the courts of this country from passing upon "the provisions for the public order of another State" (see generally Attorney-General (United Kingdom) v. Heinemann Publishers Australia Pty. Ltd. (1988) 165 CLR 30, at pp 40-44).
40. As Deane J. pointed out in Oceanic Sun (at pp 252-253), principle and authority (in the form of the decision in Maritime Insurance) favour the test adopted by his Honour. The selected forum's conclusion that it is a clearly inappropriate forum is a persuasive justification for the court refraining from exercising its jurisdiction. Granted that there is an obligation on the domestic courts of this country to exercise jurisdiction which is conferred upon them - a matter on which the majority in Oceanic Sun was united - it does not extend to cases where it is established that the forum is clearly inappropriate. To say, in line with the Spiliada approach, that the selected forum is justified in refraining from exercising its jurisdiction when it concludes no more than that another available and competent forum is more appropriate is to acknowledge that a court can decline to perform its obligation to exercise jurisdiction even though it is an appropriate or not inappropriate court. That proposition is by no means easy to sustain as a matter of legal principle, though we acknowledge that the argument deriving from the obligation to exercise jurisdiction has less force in its application to cases falling within the extended jurisdiction where the plaintiff is required to obtain leave to serve outside the jurisdiction. The court then has a discretion to exercise and in exercising that discretion it may have regard to appropriate forum considerations.
41. Deane J. also examined the policy considerations (at pp 253-255) and found them to be "persuasive but not compelling". There is no point in repeating that examination on this occasion. It is, however, necessary to deal with two specific arguments advanced by the appellant.
42. The appellant argues that, as judicial comity has replaced judicial chauvinism (The "Abidin Daver", at p 411), the interests of justice are best served by staying an action in the selected forum so that it may proceed in the more appropriate forum. But this argument has little force. In deciding whether to grant or refuse a stay, the court does not, indeed cannot, evaluate the justice or relative merits of the substantive laws of the available forums (including the chosen forum). Consequently, the argument rests on a limited notion of the interests of justice arising from balance of convenience factors which, though relevant, have never been regarded as decisive.
43. It has been urged that the Spiliada approach has been adopted not only in the United Kingdom but elsewhere and that for this reason we should embrace it. No doubt, if Spiliada were to enunciate a principle which commanded general acceptance among other countries, it would obviously be desirable in the interests of international comity that this Court, in common with the courts of other countries, should adopt a uniform approach. However, we are not persuaded that there exists any real international consensus favouring a particular solution to the question. Nor are we persuaded that any consensus exists among countries of the common law world. For present purposes it will be sufficient to refer to the approach taken by the Supreme Court of the United States, for this aspect of the appellant's case centred very largely on the principles sanctioned and applied in the decisions of that Court. Before doing so, we should mention that the Supreme Court of Canada has not yet had occasion to consider Spiliada. However, in Antares Shipping v. The Ship "Capricorn" (1977) 2 SCR 422, the majority appears to have applied a "more convenient and appropriate forum" test: see at pp 448, 451-454.
44. Despite the appellant's submission to the contrary, the approach adopted by the Supreme Court of the United States differs from Spiliada. In Piper Aircraft Co. v. Reyno (1981) 454 US 235, Marshall J., in delivering the majority opinion, observed (at p 241) that in its earlier decisions in Gulf Oil Corp. v. Gilbert (1947) 330 US 501 and Koster v. Lumbermens Mutual Co. (1947) 330 US 518 the Court stated that, though a plaintiff's choice of forum should rarely be disturbed,
"when an alternative forum has jurisdiction to hear the
case, and when trial in the chosen forum would 'establish
... oppressiveness and vexation to a defendant ... out of
all proportion to (a) plaintiff's convenience', or when the
'chosen forum (is) inappropriate because of considerations
affecting the court's own administrative and legal
problems,' the court may, in the exercise of its sound
discretion, dismiss the case. Koster, supra, at 524."
This test is more favourable to the plaintiff than Spiliada and, perhaps, is closer to the "clearly inappropriate forum" test but differs in that it takes account of the selected forum's administrative problems, e.g., congested lists and lack of judicial resources, these being matters of a kind to which our courts do not usually have regard: Oceanic Sun, at p 254. Accordingly, the United States approach does not support the appellant's case.
Should the same principles govern applications for a stay of proceedings and applications to set aside service of process outside the jurisdiction?
45. The appellant also submits that, even if this Court declines to follow Spiliada in stay applications generally, that decision should be applied in applications for leave to serve originating process outside the jurisdiction and in applications to set aside such service. The decision of this Court in Oceanic Sun is not authority to the contrary of this proposition. It was a case in which the plaintiff obtained leave to serve the originating statement of claim out of the jurisdiction and it was served accordingly. The defendant, having filed a conditional appearance, moved for an order setting aside the statement of claim, or an order setting aside service of the statement of claim, or an order for a stay of proceedings. Yeldham J. at first instance dismissed the defendant's notice of motion and that decision was affirmed by the New South Wales Court of Appeal. Neither in the Court of Appeal nor in this Court did the defendant pursue the arguments directed to the setting aside of the statement of claim or its service so the case was argued in both courts on the footing that the applicable test was that relevant to a case where proceedings had been regularly commenced by service which was no longer challenged. The explanation for that may have been a perception that, in circumstances where the Court was informed in argument that the defendant company "through an agent, JMA tours, carries on business in Australia and carried on business in Australia", the defendant could, in the particular circumstances, have been regularly served at the office of its agent which was within the jurisdiction of the Supreme Court of New South Wales: see Oceanic Sun, at pp 199, 202, 221. In that context, the Court dealt with the case on the basis upon which it was argued, namely, that the fact that service had been effected outside the jurisdiction was not significant for the purposes of resolving the appeal: see at pp 256-257.
46. The appellant points to a line of authority, in England tracing back to 1892, in which the courts, when dealing with questions of service outside the jurisdiction, directed their attention to the forum conveniens and thus applied a "more appropriate forum" test, similar or analogous to that expressed in Spiliada. Thus, in Strauss and Co. v. Goldschmid (1892) 8 TLR 512 Fry L.J. asserted (at p 513) that:
"the convenience of the action being tried here or in the
foreign country must ... be considered".
Subsequently, in Rosler v. Hilbery (1925) Ch 250 Pollock M.R., speaking with reference to the grant of leave to serve out of the jurisdiction, said (at p 259):
"The jurisdiction is discretionary, and there is no question
that in deciding whether or not it will exercise its
discretion the Court pays attention to a great number of
matters, in particular it would pay attention to what is
the forum conveniens. It would have regard to what is the
substance of the matter that has to be decided. If regard
is to be had to the forum conveniens I can imagine no forum
less convenient than the Court of this country".
Later, when the St. Pierre "oppressive and vexatious" test was still applied to stay applications, Edmund Davies L.J. observed in Baroda v. Wildenstein (1972) 2 QB 283 (at p 294) that in some areas of the law forum conveniens was a factor likely to be of decisive importance. He gave as an illustration cases in which leave was sought to serve originating process outside the jurisdiction.
47. Much the same approach has been evident in Australia. In Lewis Construction, Hudson J., in refusing an application to set aside service outside the jurisdiction of originating process, applied a "more appropriate forum" test, founding his decision on more than balance of convenience considerations: see at pp 348-350. The case was one in which the plaintiff, a Victorian company, sued the defendant, a French company, for damages for breach of a contract made in Victoria for the supply of cranes to be manufactured by the defendant in France and shipped to Melbourne. The contract provided that the Commercial Court of Lyon was to have exclusive jurisdiction in case of litigation. Hudson J. said (at p 349):
"To compel the plaintiff to resort to the latter tribunal
would, I think, be likely to result in a positive injustice,
having regard to what would be involved, whereas I think no
such result would be likely as against the defendant if it
were compelled to contest the case here".
His Honour referred, inter alia, to The "Fehmarn" (1958) 1 WLR 159; (1958) 1 All ER 333 and continued (at p 349):
"Lord Denning, in (that) case, (at p 162; p 335 of All ER)
said he preferred to look to see with what country the
dispute was most closely concerned, and he came to the
conclusion that the dispute was one 'that properly belongs
for its determination to the courts of this country'. So
in the present case I have arrived at the conclusion that
the questions to be litigated in this action are much more
closely concerned with Victoria than with France and that
the action is one which properly belongs to the courts of
48. Although this judgment, like the English cases, reflects a "more appropriate forum" test rather than a "clearly inappropriate forum" test, applications to set aside service on inappropriate forum grounds, as well as applications for leave to serve process outside the jurisdiction, must be governed by the same principles as apply to applications for a stay on inappropriate forum grounds. It would make little, if any, sense if different principles were to apply in these situations, for once a challenge to service is sought on such grounds the issues raised are the same as those raised when a stay is sought on those grounds. Questions of service out of the jurisdiction are subordinate to the ultimate question concerning the appropriateness of the chosen forum and those questions must necessarily be resolved by recourse to the principles governing the latter question.
49. In any event, the procedure whereby leave is a condition precedent to service outside the jurisdiction is of diminishing importance. In the Supreme Courts of New South Wales, Victoria, Queensland, Tasmania and the Northern Territory leave is no longer uniformly required as a preliminary to the service of originating process outside the jurisdiction: see Supreme Court Rules 1970 (N.S.W.), Pt 10; Rules of the Supreme Court 1986 (Vict.), O.7; Rules of the Supreme Court 1900 (Q.), O.11; Rules of the Supreme Court 1965 (Tas.), O.11; Supreme Court Rules 1987 (N.T.), O.7; cf. Supreme Court Rules 1987 (S.A.), r.18; Rules of the Supreme Court 1971 (W.A.), O.10; Rules of the Supreme Court of the Australian Capital Territory (Cth), O.12; High Court Rules, O.10; Federal Court Rules, O.8.
50. In the present case, the Court has before it an application to set aside service effected pursuant to an ex parte grant of leave to serve outside the jurisdiction. Where a case falls within a category in which the legislature has seen fit to allow service outside the jurisdiction if, but only if, the leave of a court is first obtained, that court should not grant leave unless it is positively persuaded that it should do so. Plainly, it should not be so persuaded unless the plaintiff satisfies it that the case is of the relevant category and that the proceedings would not be subsequently stayed as an abuse of process on forum non conveniens grounds or for some other reason. In such a case the onus should remain on the plaintiff on a subsequent application to set aside the service outside the jurisdiction. Otherwise, the ex parte order for service outside the jurisdiction, if onus of proof were to prove decisive, would confer an enduring advantage upon a plaintiff notwithstanding that the expanded evidence on a contested application to set aside service indicated that the applicant had not been entitled to that ex parte order.
Dealing with forum non conveniens applications
51. It follows that, subject to the question of onus discussed in the preceding paragraph, the principles to be applied in applications to set aside service and in applications for a stay on inappropriate forum grounds are those stated by Deane J. in Oceanic Sun, at pp 247-248. In the application of those principles the discussion by Lord Goff in Spiliada (at pp 477-478, 482-484) of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance.
52. The fact that the onus of proof will differ according to whether the application is an application to set aside service effected outside the jurisdiction pursuant to leave or an application to stay the proceedings is inevitable: this flows from the issue to which the test is relevant. In one case, should the court assume jurisdiction? In the other, should the court decline jurisdiction? As Spiliada recognizes, there will be a difference in onus regardless of the precise content of what is seen as the appropriate test. The question whether the local court is a clearly inappropriate forum focuses, on both kinds of application, upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum. In practice, the differing onus should raise no real difficulty.
53. As regards both kinds of application and subject to one qualification, we respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada (at p 465), namely, that the primary judge should "be allowed to study the evidence and refresh" his or her memory of the relevant law "in the quiet (of his or her Chambers) without expense to the parties"; that he or she should not be burdened by unhelpful reference to other decisions on other facts; and "that submissions will be measured in hours and not days". The qualification is that we think that, in the ordinary case, counsel should be able to furnish the primary judge with any necessary assistance by a short, written (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. "clearly inappropriate forum") grounds.
54. It seems to us that Lee J. in Anglo-Australian Foods Ltd. v. Von Planta (1988) 20 FCR 34 and French J. in Green v. Australian Industrial Investment Ltd. (1989) 90 ALR 500 placed too much weight upon the notion that a proceeding regularly invoked provides a prima facie right to have the proceeding continue in that forum. That is not to deny that, in deciding whether it has been established that the chosen forum is clearly inappropriate, the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration. In this respect Gaudron J. stated in Oceanic Sun (at p 266), as a qualification to her endorsement of the view of Deane J., that the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties. We agree with Gaudron J. that the substantive law of the forum is a very significant factor in the exercise of the court's discretion, but the court should not focus upon that factor to the exclusion of all others.
Application of principles to the facts of the present case - is the tort alleged a foreign tort?
55. The appellant's final submission is that, on the application of the principles just stated, New South Wales is a clearly inappropriate forum. This submission is largely based on the proposition that the cause of action sued on by the respondents is a foreign tort and that, in accordance with the second rule in Phillips v. Eyre (1870) LR 6 QB 1, as explained in Breavington v. Godleman (1988) 169 CLR 41, the respondents must show, in order to succeed in the action in New South Wales, that there would be a civil liability in Missouri on the part of the appellant.
56. The appellant argues that the cause of action alleged constitutes a foreign tort because the acts or omissions complained of, as distinct from the damage accruing therefrom, occurred outside New South Wales. The appellant contends that Gleeson C.J. was in error in concluding that the cause of action did not involve a foreign tort because it was based at least in large part upon negligent representations received and acted upon in New South Wales. The appellant points to the observations of Lord Pearson, speaking for the Judicial Committee, in Distillers Co. v. Thompson (1971) AC 458, at pp 467-468:
"In a negligence case the happening of damage to the
plaintiff is a necessary ingredient in the cause of action,
and it is the last event completing the cause of action.
But the place where it happens may be quite fortuitous
and should not by itself be the sole determinant of
57. It was held in Jackson v. Spittall (1870) LR 5 CP 542, at p 552, that the question whether a cause of action is to be classified as local or foreign is to be answered by ascertaining the place of "the act on the part of the defendant which gives the plaintiff his cause of complaint". It may sometimes be that the "cause of complaint" is the failure or refusal of the defendant to do some particular thing - in other words, an omission. It makes no sense to speak of the place of an omission. However, it is possible to speak of the place of the act or acts of the defendant in the context of which the omission assumes significance and to identify that place as the place of the "cause of complaint". That is what was done by Goddard L.J. in George Monro Ltd. v. American Cyanamid and Chemical Corp (1944) KB 432, at p 439, where the failure to warn as to the nature of goods was treated as an aspect of their sale. Sale took place outside the jurisdiction and accordingly, in the view of his Lordship, the tort was committed outside the jurisdiction.
58. The authority of Jackson v. Spittall was expressly affirmed in Distillers, at p 467. In the latter case Lord Pearson said (at p 468) that "(t)he right approach is ... to look back over the series of events ... and ask ... where in substance did this cause of action arise?" This approach can be traced to what was said by Winn J. in Cordova Land Co. Ltd. v. Victor Brothers Inc. (1966) 1 WLR 793, at pp 798, 801. And that approach was later expressly approved, although in a slightly different legal context, in Metall and Rohstoff v. Donaldson Inc. (1990) QB 391, at p 443.
59. The approach formulated in Distillers does no more than lay down an approach by which there is to be ascertained, in a commonsense way, that which is required by Jackson v. Spittall, namely, the place of "the act on the part of the defendant which gives the plaintiff his cause of complaint". That approach has particular point if, as was the case in Distillers, it is necessary to ascribe a place to an omission for the purpose of determining where, if at all, a tort was committed.
60. One thing that is clear from Jackson v. Spittall and from Distillers is that it is some act of the defendant, and not its consequences, that must be the focus of attention. Thus, in Distillers the act of ingestion of the drug Distaval by the plaintiff's mother was ignored, the place of that act being treated like the place of the happening of damage, as one that might have been "quite fortuitous".
61. In some cases an act passes across space or time before it is completed. Communicating by letter, telephone, telex and the like provide examples. In Diamond v. Bank of London and Montreal (1979) QB 333 Lord Denning M.R. stated (at p 346) that a representation or a statement effected by telephone or telex takes place "where the message is received - wherever it is heard on the telephone by the receiver or tapped out by the telex machine in the receiver's office". In the view of Stephenson L.J. (at pp 349-350) the situation was like the publication of a defamation or the act charged as an offence in D.P.P. v. Stonehouse (1978) AC 55 in that although initiated outside the country it "operates on persons and property in this country".
62. In The "Albaforth" it was said by Ackner L.J. (at p 92) and by Robert Goff L.J. (at p 96) that it had been held in Diamond that the substance of the tort of negligent misstatement is committed where the statement is received and acted upon. That is accurate so far as it reflects the facts considered in that case. But there is not and cannot be any such general rule, for a statement may be received in one place and acted upon in another. And The "Albaforth" provides no basis for a conclusion that it is the place where the statement is acted upon which determines the place at which the statement was made. That place may have no connection at all with the place where the statement was initiated or the place where it was completed. And the place where it is acted upon may be entirely fortuitous.
63. If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place.
64. The present case is one that may properly be described either as a failure to advise (i.e., an omission) or as a negligent misstatement of fact (i.e., a positive act). Strictly, the complaint is one of negligent omission, namely, failure to do various things, including failure to draw the attention of MMC and the members of the Manildra Group (including the respondents) to the requirement to pay withholding tax on MMC's interest payments to the first respondent. However, there are cases where, when information is being imparted, the failure to draw attention to some particular matter is, for practical purposes, the same as a positive statement as to that matter. That was the situation in Shaddock and Associates Pty. Ltd. v. Parramatta City Council (No. 1) (1981) 150 CLR 225. And it would seem that that is also the present case, for, in a context in which the appellant was providing professional accountancy services on the basis that withholding tax was not payable, the failure to draw attention to the requirement that it be paid was, for all practical purposes, equivalent to a positive statement that it was not payable. When the case is approached on that basis it is clear that, in substance, the cause of complaint is the act of providing the professional accountancy services on an incorrect basis. The same is true if the matter is approached as an omission, for the omission takes its significance from that same act of providing those services. That act is in no way comparable to an act, such as that in Diamond and in The "Albaforth", which passes across space to be completed in some place different from the place where it was initiated. The act of providing accountancy services was an act complete in itself, or, if not complete in itself, one that was initiated and completed in the one place. That place was Missouri. The fundamental significance of that simple fact is not diminished merely because it may be possible, for the purpose of legal classification, to treat that act as equivalent to a statement that was received or acted upon in Australia.
65. The act of the appellant giving the respondents their cause of complaint was committed in Missouri and thus the tort, if there was one, was committed in Missouri. Accordingly, even if the matter were to be litigated in this country, the appellant is liable to the respondents only if he is liable under the law of Missouri. See Phillips v. Eyre, at p 28, where it is said that "the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law". The precise role of local law under the double actionability rule laid down in Phillips v. Eyre need not be explored, but it has no direct bearing on the question whether the act of which the respondents complain was wrong for that must depend on Missouri law. The question whether it would have been wrong if committed in Australia, as is asked under the double actionability rule, merely brings local law to bear on that question hypothetically. Even though Australian revenue law features significantly in the respondents' damages claim, it is merely a circumstance bearing on the question whether damage was suffered and, if so, its quantum. It does not, in any relevant sense, determine the liability of the appellant for that damage or the quantum of recoverable damage. The proceedings have been conducted on the basis that the law of the place where the tort was committed has a significant bearing upon the determination of the dispute between the parties. In the light of what has been said it is more accurate to say that it is fundamental.
66. In this situation, we have little doubt that Missouri is the more appropriate forum but it does not necessarily follow that New South Wales is a clearly inappropriate forum. The respondents are resident here and New South Wales law is relevant on the question of damage. Furthermore, as Lord Templeman remarked in Spiliada (at p 465), the question is pre-eminently one for the trial judge, an appeal should be rare and an appellate court should be slow to intervene. Here the Court of Appeal, by majority, re-exercised the discretion because the primary judge had, through no fault of his own, applied the wrong principle. Hence this Court should be extremely reluctant to interfere with the Court of Appeal's decision on this point, the more so because the Court of Appeal applied the correct test.
67. However, the decision of that Court, reached by a majority, proceeded on the view, with which we disagree, that the wrong complained of was not a foreign tort committed in Missouri and that, accordingly, the action had a substantial connection with the law of New South Wales. As that judgment was based upon a conclusion which we consider to have been mistaken and as the connection with the law of New South Wales is slight, it is necessary to exercise the discretion afresh upon the correct view of the proper law.
68. We turn therefore to consider the factors relevant in the present appeal to the exercise of the discretion whether or not to order that the action be stayed. In favour of a stay are the considerations that: the action has a substantial connection with the law of Missouri; the relevant acts and omissions took place predominantly in Missouri; the appellant resides and works in Missouri and the professional standards of accountants in Missouri will therefore be relevant to his liability, if any; in large part the damage which the appellant was alleged to have caused was referable to United States taxation law; and the greater part of the evidence in any trial of the action would be found in Missouri.
69. On the other hand, the plaintiffs in the action are residents of New South Wales and may therefore reasonably point to the advantages to them in practical terms of bringing an action in the local courts; the transactions concerned have some connection with New South Wales and with Australian revenue laws; and, to a large extent at least, the damage was suffered in New South Wales. However, these last considerations are natural consequences and incidents of residence in a particular jurisdiction and, as such, are merely different aspects of the right of any plaintiff to bring an action in the courts of the jurisdiction wherein he or she resides. That is a legitimate personal or juridical advantage which is acknowledged by the prima facie right of a plaintiff to insist upon the exercise of a jurisdiction which he or she has regularly invoked, but beyond that it has little weight. More importantly, the plaintiffs in this case point to three further legitimate juridical advantages. First, it is said that an effective limitation bar exists in Missouri, through which the appellant could, if he wished, successfully resist the action. Secondly, there is evidence that, in proceedings of this kind in Missouri, the costs awarded in favour of a successful plaintiff may not include attorneys' fees. Finally, there is evidence that the rules as to the awarding of damages by way of interest are less advantageous to a plaintiff in Missouri than in the Supreme Court of New South Wales.
70. The first of these advantages was the subject of an undertaking by the appellant, both in the Court of Appeal and in this Court, when special leave to appeal was granted. Accordingly, it may be made a condition of any order staying the action. The second and third advantages, while doubtless significant to the respondent plaintiffs, are of diminished importance in the overall task of the court exercising the discretion based upon the competing connections of the respective forums with the subject-matter of the proceedings. They are not sufficient to resist the conclusion to which the other considerations irresistibly point, that New South Wales is clearly an inappropriate forum in which to permit the action to proceed.
71. In those circumstances, no purpose is served in considering as a separate matter the appellant's contention that service out of the jurisdiction should be set aside.
72. We would allow the appeal, set aside the order made by the Court of Appeal and order that the action be stayed, on condition that the appellant, in any proceedings which the respondents bring in Missouri concerning the subject-matter of these proceedings, undertakes not to plead any defence based upon any statute or other law relating to the limitation of actions, provided the respondents commence their proceedings in Missouri within three months of this order.
BRENNAN J. The majority judgment states the test to be applied by Australian courts in deciding applications for leave to serve originating process ex juris, applications to set aside the service of originating process ex juris and applications to stay proceedings on the grounds that the selected forum ought not exercise its jurisdiction. In Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR 197, I expressed my preferred view on this question. The judgments in Oceanic Sun were divergent and it is not possible to identify a majority which favoured one or other of the tests advanced in the respective judgments. But all available Justices have sat in the present case to consider these tests anew, and the majority have decided to "put aside individual differences of emphasis" in order that this Court perform one of its important duties, namely, to "enunciate authoritatively the principles and criteria to be applied by Australian courts in future cases". As I think it is more important that a test be authoritatively settled than that I adhere to the test I prefer, and as any such test is judge-made law, I add my acceptance of the test proposed by the majority. It is unnecessary to consider whether the performance of the institutional duty of enunciating the law authoritatively should prevail when Justices' individual views diverge on questions of the true construction of the Constitution or perhaps on questions of the true construction of a statute, for that is not the present case. I therefore join in the decision that the "clearly inappropriate" test be adopted for the determination of applications of the three classes mentioned. It does not follow that that test necessarily applies to the determination of an application for an injunction to restrain a party from prosecuting before a foreign tribunal a proceeding which, it is argued, ought be tried before a domestic tribunal: see Bank of Tokyo Ltd. v. Karoon (C.A.) (1987) AC 45, at p 63; South Carolina Co. v. Assurantie N.V. (1987) AC 24, at pp 44-45.
2. Although I agree with the majority as to the test which should be applied in determining this case, I respectfully dissent from the result of its application. To determine the outcome of this appeal, it is necessary to appreciate the nature of the claims which the respondent plaintiffs have made, albeit the nature of the claims does not appear with clarity from the language of the amended statement of claim. The allegations therein contained were expanded in a document provided to the Court of Appeal entitled "Explanation of Losses Claimed by the Second Named Plaintiff" (that is, Honan Investments Pty. Limited). The nature of the claims made by the plaintiffs can be derived from the formulation of the claims in the amended statement of claim and in the "Explanation of Losses".
3. Honan Investments is the holding company of the Manildra group of companies. Manildra Flour Mills Pty. Limited is the operating company of the group. Manildra Flour is a subsidiary of Honan Investments. Another corporation in the group is Manildra Milling Corporation (MMC), a Kansas corporation carrying on business in the United States of America, and a wholly-owned subsidiary of Honan Holding USA. Honan Holding USA, in turn, is a subsidiary of Honan Investments. There is no shareholding link between Manildra Flour and MMC.
4. The defendant Voth is a member of a firm of accountants ("DHS") practising in Missouri whom MMC engaged "as the auditors and taxation agents and advisers of MMC" and who "undertook for reward to perform auditing and related functions for MMC, including the preparation of taxation returns, reports, opinions and advices." The plaintiffs allege that Voth and the members of the DHS partnership "failed to exercise all reasonable care skill diligence and competence as auditors of MMC and in and about the preparation and provision of reports, opinions and advice to MMC and in and about the preparation and provision of accurate accounts of MMC (and) accurate reports, opinions and advices concerning the accounts of MMC." In particular, it is alleged that DHS failed to advise MMC that the United States Internal Revenue Code obliged MMC to deduct withholding tax from the interest paid by MMC to Manildra Flour and to account for that tax to the Internal Revenue Service ("IRS") and that, in default of payment, penalty interest became payable. DHS allegedly failed to ensure that appropriate provision for payment of the withholding tax and penalty interest was made in MMC's accounts. It is further alleged that DHS failed to advise either of the plaintiffs or their Australian accountants of the same matters.
5. The consequences to the plaintiffs of their and MMC's unawareness of MMC's liabilities under the Code are alleged to be losses falling chiefly, if not entirely, into two categories. The first category is an alleged loss of $US194,273 being moneys credited by Manildra Flour to MMC in respect of penalty interest paid by MMC to IRS on the unpaid withholding tax and, in addition, interest on that sum from the date of payment. These amounts were claimed as loss suffered by Manildra Flour. It was conceded that this part of Manildra Flour's "damage" should be treated as having been suffered in the United States of America. These amounts were said by counsel for the plaintiffs before the Court of Appeal to be a payment to reimburse MMC for a payment made by MMC which discharged a liability to IRS owing by both MMC and Manildra Flour. The second, and much larger, category of alleged loss is made up of amounts of irrecoverable overpayments of Australian income tax by each of the plaintiffs, interest on the amounts overpaid and loss of the Australian tax benefit of carry-forward losses which would have been available to the plaintiffs had MMC's obligation to pay withholding tax been discharged. Honan Investment's alleged losses (all in the second category) consist of three amounts which the "Explanation of Losses" identifies as follows:
"(Item 1) - $196,414 - Income tax overpaid. At all material
times (Honan Investments) was the holding company of the
members of the Manildra Group of Companies. In the years
1976 to 1984 the affairs of the members of the group were
arranged so as to (where possible) minimise the income tax
payable by group members. If (Honan Investments) had been
informed prior to 1 December 1983 that interest payable by
MMC was exempt income for the purposes of the Income Tax
Assessment Act 1936, (Honan Investments) and its advisors
would have caused advances to be made to MMC by companies
in the group which could have taken advantage of such
exempt income namely companies which had no carry forward
tax losses against which such exempt income was required to
be set off pursuant to s 80(2) of the Income Tax Assessment
Act. The loss to (Honan Investments) as a result of such
steps not having been taken amounted to $196,414 such loss
representing the amount which would have been claimed by
(Honan Investments) by way of dividends, in respect of
which a rebate would be obtained from its subsidiaries had
such steps been taken (sic). Had these steps been taken,
the assessable income of group members would have been
reduced as would the group income taxes paid. The sum
of A$196,414 represents the difference between the taxes
actually paid by members of the group in the relevant year
(excluding (Manildra Flour)) and the taxes that would have
been paid had the steps referred to above been taken.
(Item 2) - $110,097 Because of the overpayment of income
taxes of A$196,414 in the years 1976 to 1984, (Honan
Investments) as group holding company incurred interest
on funds made available to pay such taxes which were
unnecessarily paid. The sum of A$110,097 is the cost of
providing the income taxes overpaid calculated on the bank
overdraft rates applicable to (Honan Investments) over the
period from 31 March 1978 to 30 September 1985.
(Item 3) - $185,955 Of the exempt income received in 1979
to 1983 $404,249 was offset against losses incurred by
(Manildra Flour). Had such losses not been so offset but
made available to other companies in the group pursuant to
s 80G of the Income Tax Assessment Act the group taxation
liability would have been reduced by $185,955. This amount
would otherwise have been available to (Honan Investments)
in a similar fashion to the sum referred to in Item 1."
Manildra Flour's Australian tax losses were alleged to be as follows:
"(3) $A69,386 being non-recoverable Australian income tax
paid on exempt income;
(4) $A42,823 being interest on Australian income tax
overpaid from the dates of payment to 30 September 1985
(5) $A135,802 being the benefit of non-available carry-forward
losses which would otherwise have been claimed pursuant to
the provisions of s.80 of the Income Tax Assessment Act."
6. The first category of alleged loss - Manildra Flour's crediting of MMC with an amount equivalent to the amount paid by MMC to IRS as a penalty and interest - is not clearly explained. If it is said to be a loss to Manildra Flour resulting from Voth's carelessness in advising MMC or auditing its accounts, Manildra Flour's cause of action must depend either on its right to recover its loss consequential on Voth's breach of a duty of care owed to MMC or on the existence of a duty of care owed by Voth to Manildra Flour and a breach of that duty by Voth. Neither basis is spelt out in the amended statement of claim. Assuming that one or other of those bases is available to support Manildra Flour's claim for the amount it credited to MMC, the cause of action on which Manildra Flour relies arose in substance in Missouri.
7. In Distillers Co. v. Thompson (1971) AC 458, the Privy Council considered three propositions, one of which was to be adopted as a test for determining the place where there arose a cause of action in negligence against a manufacturer of Distaval (thalidomide) which was dangerous if distributed without a warning. The English manufacturer had exported the product, packed with instructions for use, to an importer in New South Wales where the product was distributed. The plaintiff's mother took Distaval during her pregnancy with the plaintiff who sued in New South Wales for resulting birth defects. The three propositions were that the plaintiff's cause of action, if any, arose where (i) every ingredient occurred; (ii) the last ingredient occurred; or (iii) the act of the defendant which gave the plaintiff a cause of complaint occurred. The third proposition was adopted as the test. In Distillers Co. the act which determined the location of the tort was not the manufacture of the product; the negligence, if any, consisted in a failure to give a warning to the consumer of the danger of taking Distaval in the first three months of pregnancy. That act (or omission) took place in New South Wales. Similarly, in George Monro Ld. v. American Cyanamid and Chemical Corp. (1944) KB 432, at p 441, du Parcq L.J. proposed the test: "Where was the wrongful act, from which the damage flows, in fact done?" In each case, it is necessary to look at the damage which the plaintiff seeks to recover and then, looking back along the claim of causation, to ascertain the act or omission of the defendant which was the substantial cause of that damage: see Distillers Co. v. Thompson, at p 468; Castree v. Squibb Ltd. (1980) 1 WLR 1248, at pp 1251-1252; (1980) 2 All ER 589, at pp 591-592. Here, the act (or omission) which gave Manildra Flour its cause of complaint with respect to the payment made to reimburse MMC - the first category of loss - consists simply in Voth's (or DHS's) negligence in auditing MMC's accounts or in advising MMC of its liability. Assuming that those acts or omissions can found a liability to Manildra Flour, they occurred in Missouri.
8. However, the first category of loss is a comparatively small part of the total amounts claimed in the action. All of Honan Investment's claims and some of Manildra Flour's claims are for losses, allegedly irrecoverable, of income tax paid and tax benefits foregone which the respective plaintiffs would not have suffered had they been advised of MMC's liability to pay withholding tax to IRS which, had it been paid, would have made the net interest paid by MMC to Manildra Flour exempt income under the Income Tax Assessment Act 1936 (Cth). At all events, that is the essence of the allegations in the amended statement of claim. These losses were suffered in Australia. Assuming that the respective plaintiffs are entitled to recover these losses from Voth, what was Voth's act or omission (it is unnecessary to consider DHS separately) which gave the respective plaintiffs their "cause of complaint"?
9. The statement of claim pleads that Voth knew or ought reasonably to have known that the plaintiffs "would have relied on the defendant's audit of the accounts of MMC in the carrying on of their business in Australia, including the preparation of returns required to be lodged under the Income Tax Assessment Act 1936, the declaration of income properly assessable under such Act and the claiming of deductions properly allowable thereunder" and further that the plaintiffs relied on the reports, opinions and advices provided by Voth and on the audited accounts of MMC "in the preparation of the consolidated accounts of the Group and in the lodgment with the Federal Commissioner of Taxation of income tax returns for each company in the Group, including the first and second named plaintiffs and in the calculation of the assessable income of each company in the Group and the calculation of allowable deductions properly claimed by each of such companies." It was alleged that Voth was "under a duty to each of the plaintiffs to exercise all reasonable care skill diligence and competence as auditors of MMC in and about the preparation and auditing of the accounts of MMC and in and about the preparation and provision of reports, opinions and advice to MMC and in and about the preparation and provision of accurate accounts of MMC and accurate reports, opinions and advices concerning the accounts of MMC."
10. It should be noted that the plaintiffs' claims in the second category of loss are not founded on a duty of care owed to MMC, but on a duty of care owed to the plaintiffs. Yet the losses claimed by the plaintiffs are losses flowing immediately from assessments to tax apparently founded on returns by them or by other companies in the Manildra group (other than MMC). Assumedly, the returns were mistakenly compiled in ignorance of the true position as to MMC's liability to IRS to pay withholding tax. The losses which the plaintiffs seek to recover were incurred in direct consequence of the mistake made by the plaintiffs in ignorance of the true position. Once the plaintiffs' claims in the second category are seen to depend on a mistake made by them, the act or omission by Voth which gave the plaintiffs their cause of complaint must be identified as the act or omission which induced them to make the mistake. That is, either Voth's failure to inform the plaintiffs of MMC's liability to IRS to pay withholding tax or his failure to inform the plaintiffs of the error in the erroneous accounts prepared for MMC which Voth knew the plaintiffs would receive and rely on. If the losses in the second category are to be sheeted home to Voth, the breach of the duty which Voth owed to the plaintiffs must be found to consist in his failure to communicate to them the true position as to MMC's liability to IRS to pay withholding tax. Where did that failure occur?
11. The alleged causes of action now under consideration are different from those causes of action where a loss is caused to the person or property of a plaintiff without any action on his part. These causes of action, like those arising from negligence in spoken or written words, arise (if at all) directly from the plaintiff's own action. As Lord Oliver said in Caparo Plc. v. Dickman (1990) 2 WLR 358, at p 381:
" The damage which may be occasioned by the spoken or
written word is not inherent. It lies always in the
reliance by somebody upon the accuracy of that which the
word communicates and the loss or damage consequential upon
that person having adopted a course of action upon the
faith of it."
See also San Sebastian Pty. Ltd. v. The Minister (1986) 162 CLR 340, at pp 353,366. In a case of negligent misrepresentation, the plaintiff is induced to act to his detriment in mistaken reliance on what has been carelessly represented; in a case of a negligent failure to advise, the plaintiff is induced to act to his detriment in ignorance of a fact which the defendant has carelessly failed to communicate. Here, the relevant negligence is not Voth's alleged carelessness in auditing MMC's accounts but in the communication of the results of that audit to the plaintiffs or in Voth's failure to communicate to the plaintiffs a correction of the results of the audit so as to reveal MMC's liability to IRS to pay withholding tax. A distinction between work carelessly done and the communication of the results of the work was drawn by Lord Templeman in reference to a valuation report in Smith v. Bush (1990) AC 831, at p 848:
"My Lords this confuses the valuer's report with the work
which the valuer carries out in order to make his report.
The valuer owed a duty to exercise reasonable skill and
care in his inspection and valuation. If he had been
careful in his work, he would not have made a 'negligent
misstatement' in his report."
12. If Voth's communication with the plaintiffs of MMC's accounts or his failure to communicate to the plaintiffs corrections to MMC's accounts be identified as the relevant act or omission which gave the plaintiffs their cause of complaint, the place where the alleged tort occurred is not Missouri; it is New South Wales. Misrepresentations occur where they are received: that is the place where the inducement occurs. In Diamond v. Bank of London and Montreal (1979) QB 333, Lord Denning M.R. in the Court of Appeal (at p 346) said:
" The truth is that each tort has to be considered on
its own to see where it is committed. ... Every tort
must be considered separately. In the case of fraudulent
misrepresentation it seems to me that the tort is committed
at the place where the representation is received and
acted upon; and not the place from which it was sent.
Logically, it seems to me, the same applies to a negligent
misrepresentation by telephone or by telex. It is
committed where it is received and acted upon."
13. I would respectfully agree with this analysis except in cases where the misrepresentation is acted on in a place different from the place where it is received. The act of a defendant which sets in train consequences resulting in damage is complete once the plaintiff's mistake is induced. In my opinion, a misrepresentation is made when, and therefore where, it is received. Lord Denning's identification of the place of reception of a misrepresentation as the locality of a tort in which damage flows from a plaintiff's being induced to act to his detriment was subsequently applied in The "Albaforth" (1984) 2 Lloyd's Rep 91, per Ackner L.J. at p 92. See also Armagas Ltd. v. Mundogas S.A. (1986) AC 717, at p 740; cf. Metall and Rohstoff v. Donaldson Inc. (1990) QB 391, at p 449, where the Court of Appeal seems to hold that the tort of inducing breach of contract may occur where the contract is breached.
14. In this case, the plaintiffs were resident in Australia. They were induced in Australia to prepare the relevant mistaken returns of income. Voth's alleged misrepresentation to them of MMC's position or his alleged failure to communicate to them the truth as to MMC's liability to IRS to pay withholding tax occurred in Australia, albeit the error which caused Voth to breach the duty of care owed to the plaintiffs consisted in an error made by him in Missouri. It was not that error which caused the second category of alleged losses; it was Voth's conduct in breach of his duty to the plaintiffs which induced them to act to their detriment. That conduct, whether it consisted in a communication of false advice to the plaintiffs or a failure to correct false advice, occurred in New South Wales. If the action be heard in New South Wales, the law of that State will exclusively govern claims in the second category. New South Wales is the natural forum for the determination of the dispute as to the claims in the second category: see The "Albaforth", at pp 94,96. Although the location of the defendant's conduct which is alleged to have caused the loss in the first category is Missouri, that loss is of much lesser amount and significance than the losses alleged in the second category. The location of the defendant's conduct allegedly causing losses in the second category is of greater importance in determining the defendant's motion to set aside service of the statement of claim.
15. The Supreme Court of New South Wales has jurisdiction to try the plaintiffs' action. The plaintiffs' chief causes of action arose in New South Wales and are governed by New South Wales law. In these circumstances, the Supreme Court of New South Wales is not only an appropriate forum; it is the appropriate forum for hearing and determining those causes of action.
16. As the Supreme Court is not an inappropriate tribunal to hear and determine the action, I would dismiss the appeal.
TOOHEY J. At the end of our judgment in Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR 197, at p 220, Wilson J. and I said:
"It is apparent that the decision of the Court, while
resolving the immediate dispute between the parties, does
not yield a precise and authoritative statement of the
principles that should be applied in dealing with an
application to stay proceedings. That statement must await
That day appears to have arrived.
2. It is hardly necessary to stress how important it is that legal practitioners be able to advise their clients with reasonable certainty as to the forum in which they should launch proceedings. Likewise, it is undesirable that the time of the courts be taken up unduly with interlocutory hearings, in which service of process outside the jurisdiction is resisted or a stay is sought of proceedings served within the jurisdiction, because of uncertainty as to the appropriate test to be applied in such cases. There have been too many instances where the parties "have chosen to litigate in order to determine where they shall litigate": Lord Templeman in Spiliada Maritime Corp. v. Cansulex Ltd. (1987) AC 460, at p 464. No doubt, such hearings are unavoidable to some extent because, whatever test is applied, there may be dispute as to its application in the particular case. But the argument is irresistible that hearings should be kept to a minimum and that appeals from the resulting decisions should be discouraged. The observation of Lord Templeman in Spiliada, at p 465, that "the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge" is equally true of Australia.
3. Again, whatever the test, it should be of equal application, whether a court is faced with an application for leave to serve outside the jurisdiction, an application to set aside an order for service outside the jurisdiction (as in this case), or a situation in which a defendant has been served within the jurisdiction but seeks to obtain a stay of those proceedings. The judgment of Mason C.J., Deane, Dawson and Gaudron JJ. demonstrates the unreality of asserting a different test for each situation. Once there has been a challenge to the exercise of jurisdiction by the "local" court, the issues are the same, no matter what form of application is used to bring the matter before the court. In the end, however the principle is expressed, the matter turns on either the appropriateness or inappropriateness of the selected forum. That is not to say that the onus of proof will necessarily be resolved in the same way; that is a matter to which I will turn later in these reasons.
4. But, once all that has been said, if it is sought now to arrive at an authoritative statement of principle, a basic aspect of the judicial process is exposed. A judge who has written in dissent on a particular matter should have no difficulty in accepting the view of the majority and loyally applying that view unless and until a different majority view should prevail. But when a judge has written in dissent and the matter is re-argued before the court, different considerations arise. The doctrine of stare decisis may have the consequence that the earlier decision is not disturbed: see the discussion in John v. Federal Commissioner of Taxation (1989) 166 CLR 417, at pp 438-439. But if that is not to be and the judge is persuaded that his earlier expression of opinion was in error, he must say so. If he is not so persuaded, he should not abandon his earlier views, just for the sake of uniformity. That is not to say that a joint judgment may not properly reflect an accommodation of ideas and approaches in reaching an end result which is essentially shared by all who participate in the judgment. But that is a different thing; no dissent on basic principle is involved. Speaking of dissenting and concurring opinions, Charles Evans Hughes wrote in The Supreme Court of the United States, (1936), pp 67-68:
"When unanimity can be obtained without sacrifice of
conviction, it strongly commends the decision to public
confidence. But unanimity which is merely formal, which
is recorded at the expense of strong, conflicting views,
is not desirable in a court of last resort, whatever may
be the effect upon public opinion at the time. This is so
because what must ultimately sustain the court in public
confidence is the character and independence of the judges.
They are not there simply to decide cases, but to decide
them as they think they should be decided, and while it may
be regrettable that they cannot always agree, it is better
that their independence should be maintained and recognized
than that unanimity should be secured through its
See also Kirby, "On the Writing of Judgments", (1990) 64 Australian Law Journal 691, at pp 707-708.
5. What Chief Justice Hughes said must apply with at least equal force when a judge has earlier expressed a dissenting view and is not persuaded that the view was in error. Whether I should adhere to the view expressed in Oceanic Sun, that a stay will be granted on the ground of forum non conveniens if the court is satisfied that there is some other available forum which is clearly the more appropriate forum for the trial of the action, depends on the persuasiveness of the clearly inappropriate forum as the appropriate test. That test commends itself to the majority in the disposition of this appeal. But the various tests that have been canvassed in decisions of the courts and in academic writings are not mere glosses; they reveal qualitative differences in their approach.
6. So to state the dilemma would suggest that the choice is between the test adopted by Deane J. and (largely) by Gaudron J. in Oceanic Sun, and that which Wilson J. and I thought should be followed. And in reality that is the position. The view expressed by Brennan J. in Oceanic Sun, at pp 239-240, that the formulation by Scott L.J. in St. Pierre v. South American Stores (Gath and Chaves) Ltd. (1936) 1 KB 382, at p 398, "is, and should remain, the law of this country and 'oppressive' and 'vexatious' should be understood according to their ordinary meaning" was not a view shared by any other member of the Court.
7. It is, unfortunately, necessary to go over some of the ground that was trodden in Oceanic Sun but I shall try to avoid merely repeating what was said in that case. One matter which does warrant further consideration because it lies at the very heart of the problem is the juridical theory according to which a court, properly seized of a matter, may decline to exercise its jurisdiction. Scott L.J. in St. Pierre came close to expressing such a theory when he said, at p 398:
"(T)he defendant must satisfy the Court that the continuance
of the action would work an injustice because it would be
oppressive or vexatious to him or would be an abuse of the
process of the Court in some other way".
The same idea was expressed by Lord Simon of Glaisdale in The "Atlantic Star" (1974) AC 436 when he said, at p 471:
"(A) plaintiff who founds jurisdiction will not be denied a
hearing unless he is misusing the forensic process so as to
8. Such statements carry with them the notion that a plaintiff has some sort of vested right to an exercise of the jurisdiction invoked, which will not be denied unless there is something oppressive or vexatious in the bringing of the action in the selected forum. Whatever merit that approach has where service is effected within the jurisdiction, can it have any merit where service is effected outside the jurisdiction? The concern that service in the latter case constitutes an interference with the jurisdiction of the courts of another country is mentioned later in these reasons.
9. It is said that the approach to be found in the passages just quoted has the support of The "Atlantic Star". Lord Kilbrandon, who was among the majority in that case, spoke, at pp 477-478, of "factors which can, and in this case do, make the continuance of the case in England oppressive or vexatious to the defendants, within the morally neutral meaning which these words should, I think, in this context bear". Nevertheless, his Lordship went on to deal with considerations pointing in favour of or against an English or a Belgian court. Indeed, the judgments in The "Atlantic Star" have about them the flavour of searching for the more appropriate forum rather than of some right vested in the plaintiff.
10. Taking a somewhat broader approach than Brennan J., Deane J. in Oceanic Sun, at p 242, referred to Maritime Insurance Co. Ltd. v. Geelong Harbor Trust Commissioners (1908) 6 CLR 194 in support of his view of the power to dismiss or stay proceedings on the ground that they should have been brought elsewhere and said that such a power
"is limited to the case where the court is persuaded that it
is such an unsuitable or inappropriate forum for their
determination that their continuance would work a serious
injustice in that it would be oppressive and vexatious to
11. However the place of Maritime Insurance in forensic history must be understood. First, Maritime Insurance concerned service of process within Victoria; it says nothing about service outside the jurisdiction. Secondly, the judgments say nothing about "inappropriate forum"; at p 198, Griffith C.J., with whom the other members of the Court agreed, was content to follow Logan v. Bank of Scotland (No.2) (1906) 1 KB 141, at p 150, read with the judgment of Warrington J. in Egbert v. Short (1907) 2 Ch 205, at p 213. The approach taken by Griffith C.J. was that, prima facie there being an injustice to the appellant if the action proceeded in Victoria, the question was whether granting a stay of proceedings "would not work at least as great an injustice to the respondents": at p 199. His Honour's conclusion was expressed in these terms, at p 201:
"Under these circumstances can it be said that injustice
will not be done to the respondents by staying this action
and compelling them to go somewhere else, quite as great as
that done to the appellants by allowing the respondents to
proceed with the action?"
12. Although the judgments in St. Pierre refer with approval to Logan, the approach taken in the latter case to the notions of oppression and vexation was more expansive than the approach taken in the former. Indeed, in Logan the judgment of the President of the Court of Appeal, Sir Gorell Barnes, is in terms not unlike the doctrine of forum non conveniens. For instance, the President, with whose judgment the other members of the Court of Appeal agreed, said, at pp 151-152:
"Yet it seems to me clear that the inconvenience of trying a
case in a particular tribunal may be such as practically to
work a serious injustice upon a defendant and be vexatious.
This would probably not be so if the difference of trying
in one country rather than in another were merely measured
by some extra expense; but where the difficulty for the
defendant of trying in the country in which the action is
brought is such that it is impracticable to properly try
the case by reason of the difficulty of procuring the
attendance of busy men as witnesses, and keeping them
during a long trial, and of having to deal with masses of
books, documents, and papers which are not in the country
where the action is brought, and of dealing with law
foreign to the tribunal, it appears to me that a case of
vexation in some circumstances may be made out if the
plaintiff chooses to sue in that country rather than in
that where everybody is and where all the witnesses and
material for the trial are."
And the same is true of Maritime Insurance. The question there was not whether Victoria was an inappropriate forum but whether Natal was more appropriate. Significantly, one of the grounds of appeal to the High Court (at p 196) was:
"That the proper and more convenient Court to try the
plaintiffs' alleged cause of action is the Court of Natal,
South Africa, where such alleged cause of action arose."
13. The principles espoused in Logan are no longer acceptable in England because of the developments which culminated in Spiliada. And, although Maritime Insurance was decided in 1908, it does not seem to have been followed or indeed mentioned in any reported Australian decision until Cope Allman (Australia) Ltd. v. Celermajer (1968) 11 FLR 488, a case of service out of the jurisdiction. Gibbs J. spoke, at p 492, of the principles to be applied as being those laid down in Maritime. But his Honour's conclusions were couched in the language of St. Pierre when he said, at p 494:
"Before I may decline to exercise jurisdiction and deny to
the plaintiff its prima facie right to proceed in this
Court I must be satisfied that there would be something
amounting to vexation, oppression or injustice to the
Cope Allman concerned service out of the Australian Capital Territory; the parties and matters in dispute were essentially associated with New South Wales. A real question arises as to the applicability of rules of private international law as between the States and Territories of this country: see Breavington v. Godleman (1988) 169 CLR 41. But that question does not arise in this appeal.
14. Following Cope Allman, Maritime Insurance was considered in Garseabo Nominees Pty. Ltd. v. Taub Pty. Ltd. (1979) 1 NSWLR 663 though Yeldham J. followed MacShannon v. Rockware Glass Ltd. (1978) AC 795; was applied in Ranger Uranium Mines Pty Ltd v. BTR Trading (Qld) Pty Ltd (1985) 34 NTR 1; and was followed in Kimberley NZI Finance Ltd v. Ferguson (1988) WAR 288, though by that time Oceanic Sun had been decided by this Court. It was of course referred to in Oceanic Sun and by the Court of Appeal in the instant case, now reported as Voth v. Manildra Flour Mills Pty Ltd (1989) 15 NSWLR 513. And see also Reese Bros Plastics Limited v. Hamon-Sobelco Australia Pty. Limited (unreported, Court of Appeal of New South Wales, 23 December 1988). It is a matter of some interest that Maritime Insurance is not mentioned in any of the standard Australian texts on conflict of laws. In all the circumstances, there are real difficulties in putting forward Maritime Insurance as having established accepted principles in this country where a stay of process served out of the jurisdiction is sought. Certainly, in Lewis Construction Co. Pty. Ltd. v. Tichauer S./A. (1966) VR 341, Hudson J. applied the more appropriate forum test in refusing to set aside an order for leave to serve out of the jurisdiction. No reference is made in his Honour's judgment to Maritime Insurance.
15. A review of the Australian authorities before the decision of this Court in Oceanic Sun does not yield any clear-cut approach to staying proceedings, to granting leave to serve out of the jurisdiction or to setting aside orders for service out of the jurisdiction. On the other hand, it is possible to trace the development of English law, culminating in the adoption of the rule of forum non conveniens in Spiliada: see Oceanic Sun, at pp 209-213.
16. While the approach taken by Scott L.J. in St. Pierre is at odds with the approach taken in Spiliada, it does offer an explanation which may be comprehended readily enough. It requires that the action sought to be stayed be oppressive or vexatious to the defendant or an abuse of the process of the court in some other way. But that explanation is no longer acceptable, at least not in the undiluted form in which it was expressed in that case. The notion of forum non conveniens looks more broadly at the situation before the court. It recognizes that in the modern world, particularly in the modern commercial world, there may be more than one forum available to a plaintiff. To borrow a passage from Professor Pryles, "Judicial Darkness on the Oceanic Sun", (1988) 62 Australian Law Journal 774, at pp 790-791:
"there is often a range of possibilities available to a
plaintiff as far as the situs for the institution of
litigation is concerned. In these circumstances, and in
the context of an international dispute, it by no means
follows that a plaintiff should have an unrestricted right
to choose the venue of an action. Considerations of
fairness and equity require that a defendant should be
able to challenge the venue selected by the plaintiff,
even assuming the court is competent under its own
jurisdictional rules. It is here that the principle of
forum non conveniens has an important role to play."
17. In MacShannon, at p 812, Lord Diplock spoke of the "natural forum". But, with respect, the concept has its difficulties. In the world of international dealings, it will be a rare case where there is only one natural forum, unless the expression means the forum with which the action has the most real and substantial connection. If that is what it means, it is only another way of identifying the more appropriate forum. There can, in theory, be only one such forum, however difficult it may be, in practice, to identify it. However, since the onus is on the defendant served with process within the jurisdiction to establish that there is another forum which is clearly more appropriate for the trial of the action, the practical result is that many applications for a stay of proceedings will fail. In this way, as Lord Goff of Chieveley observed in Spiliada, at p 477:
"proper regard is paid to the fact that jurisdiction
has been founded (in the local forum) as of right (see
MacShannon's case (1978) AC 795, per Lord Salmon); and
there is the further advantage that, on a subject where
comity is of importance, it appears that there will be a
broad consensus among major common law jurisdictions."
18. An approach in terms of the clearly inappropriate forum must look to the appropriateness of the local forum and not necessarily to any other forum. It carries with it as a possible consequence that the forum in which the proceedings are commenced may be held clearly inappropriate without arriving at any conclusion as to the appropriateness of another forum. And that is so, even if there is another forum thought to be appropriate but in which proceedings cannot, for one reason or another, be commenced. Since these matters are not ordinarily aired unless there is a stay application or an application to set aside an order for leave to serve outside the jurisdiction, one must contemplate the possibility (theoretical though it may be) that, in a particular case, a "clearly inappropriate forum" may be permitted to exercise jurisdiction.
19. In Spiliada the view was taken that the test is the same, whether service is within or without the jurisdiction. As suggested earlier in these reasons, there is no sufficient justification for applying a different test. "The discretion to grant leave to serve process outside the jurisdiction and so to subject a foreigner to the jurisdiction of a New South Wales court should be exercised with due regard to the principle of forum non conveniens": Oceanic Sun, at p 216. The statement by Gleeson C.J. in Voth, at p 529, that "it would be illogical to draw a hard and fast distinction between cases of service within the jurisdiction and cases where leave is necessary in order to permit service outside the jurisdiction" is hard to challenge. Cf. Freckmann v. Pengendar Timur Sdn Bhd (1989) WAR 62, at p 75. Where leave is not required, the court may nevertheless decline to exercise jurisdiction: Kuwait Asia Bank v. National Mutual Life Nominees Ltd. (1990) 3 WLR 297. However, it does not follow that the onus in each case is the same; in this regard differences have emerged.
20. If a defendant seeks a stay of proceedings where process was served within the jurisdiction, the onus rests on him to justify a stay, whether the test be to point to a more appropriate jurisdiction elsewhere or to demonstrate that the forum chosen is clearly inappropriate: In re Norton's Settlement (1908) 1 Ch 471, at p 479; St. Pierre, at p 398; Spiliada, at p 476.
21. On an application for leave to serve outside the jurisdiction, the onus is on the plaintiff to satisfy the court that the case is a proper one for service out of the jurisdiction. And that is so, whether there is a rule of court in those terms (see, for instance, the Rules of the Supreme Court 1965 (U.K.), O.11, r.4(2)), or not; "such an injunction is necessarily implicit in the discretionary power to grant leave": Oceanic Sun, at p 216. Whether the case is a proper one for service out of the jurisdiction includes the question of forum non conveniens: see Oceanic Sun, at p 216. It would include the clearly inappropriate forum test or whatever test was thought to be applicable where a stay of proceedings is sought. As to onus on such an application for leave, "the burden is, quite simply, the obverse of that applicable where a stay is sought of proceedings started ... as of right": Spiliada, at p 481. The reason is that the courts traditionally have seen service outside the jurisdiction as "prima facie an interference with the exclusive jurisdiction of the sovereignty of the foreign country where service is to be effected": Scott L.J. in George Monro Ltd. v. American Cyanamid and Chemical Corp. (1944) KB 432, at p 437; see also Mackender v. Feldia A.G. (1967) 2 QB 590, at p 599.
22. When a court is asked to set aside an order giving leave to serve outside the jurisdiction or to stay proceedings resulting from such an order, where does the onus lie? It ought not depend upon the form of order sought; in most cases the defendant seeks both a stay of proceedings and an order setting aside leave to serve outside the jurisdiction. This is such a case. It has been said:
"In practice the matters relevant to the exercise of
discretion are likely to be considered in depth on an
application by the defendant to set aside the order
granting leave to serve ex juris (or in an application to
confirm service made without leave in New South Wales and
the Federal Court) rather than in the original ex parte
application to obtain leave." (Sykes and Pryles, Australian
Private International Law, 2nd ed. (1987), p 35)
This may well be true but, as already noted, the operation of the relevant test is a matter with which a court should deal on an application for leave to serve out of the jurisdiction. In other words, a court, faced with an application for leave to serve out of the jurisdiction, should ask, not only whether the case falls within a prescribed category, but also whether service is warranted having regard to the prevailing test for staying such proceedings. The jurisdiction of the court is then "properly invoked": Oceanic Sun, at p 215.
23. The imposition of a different onus, depending on whether service was effected within the jurisdiction, effected outside the jurisdiction with leave or effected outside the jurisdiction without leave, gives rise to undue complications in the law. It must be remembered too that, in terms of the doctrine of forum non conveniens, a defendant who persuades the court that another forum is clearly a more appropriate forum for the disposition of the action may be met with the argument that "the interests of the parties and the ends of justice will nevertheless best be served by refusing a stay": Oceanic Sun, at p 219. It is here that the notion of a legitimate personal or juridical advantage in the other forum may be prayed in aid by the plaintiff. In other words, a shifting onus is involved. Symmetry in the law may not be an end in itself but, equally, confusing complications are to be avoided if possible. Once it is accepted that the test for staying proceedings is the same, whether service was effected within or outside the jurisdiction (and for this purpose it does not matter whether the test is forum non conveniens or clearly inappropriate forum), and that a court faced with an application for leave to serve out of the jurisdiction must consider the implications of the appropriate test, it is reasonable that the onus lie on the defendant to obtain a stay of proceedings or an order setting aside leave to serve. Certainly there is no justification for placing the onus by reference to the particular relief sought.
24. To what has just been said, I would add this qualification. The question of onus may be resolved by rules of court. By way of example, Pt 10, r.6A of the Supreme Court Rules 1970 (N.S.W.), a rule which came into force after the decision at first instance in the present case, provides for the setting aside of process served outside Australia without leave. The onus is clearly on the defendant to show that the Supreme Court of New South Wales "is an inappropriate forum for the trial of the proceedings": r.6A(2)(b). Likewise, under the Rules of the Supreme Court of Victoria, where service may now be effected out of the jurisdiction without leave in certain circumstances, the defendant may apply to set aside service of the writ or stay the proceedings on the ground that "Victoria is not a convenient forum for the trial of the proceeding": r.7.05(2)(b). Such rules represent a departure from the traditional approach to interference with the jurisdiction of a foreign country mentioned earlier in these reasons. It would be anomalous if a defendant served out of the jurisdiction without leave bore the onus of setting aside service but a plaintiff who had obtained leave to serve out of the jurisdiction continued to carry the onus if service was challenged. The notion that, unless the onus remains on the plaintiff who has obtained an ex parte order for service out of the jurisdiction, the plaintiff will have an "enduring advantage" sits rather uncomfortably with the onus placed by the rules of court referred to in this paragraph. That may say no more than that this area of the law has not been noted for its clarity or certainty.
25. The question of onus is not unimportant. Where the onus lies on the defendant, whether by reason of the common law or rules of court, and the doctrine of forum non conveniens is applicable, it will not be easy for a defendant to obtain a stay of proceedings or an order setting aside service out of the jurisdiction. As is clear, the search is for the more appropriate forum, a search which does not require a comparison of the merits and demerits of the alternative forum, except perhaps where 'legitimate personal or juridical advantage' comes into play: see Oceanic Sun, at pp 219-220.
26. It follows from what has been said in these reasons that I am impenitent in adhering to the view which Wilson J. and I expressed in Oceanic Sun; thus the doctrine of forum non conveniens should determine whether, in the present case, there should be a stay of proceedings. It is necessary then to determine the application of that doctrine to the facts. I would begin the search for the appropriate forum by asking, as Wilson J. and I did in Oceanic Sun, at p 217, with which forum has the action the most real and substantial connexion. In this regard I agree with the judgment of Mason C.J., Deane, Dawson and Gaudron JJ. that the respondents' complaint is that the appellant provided professional accountancy services on an incorrect basis. Whether that be viewed as a positive act or a negligent omission, the cause of complaint was committed in Missouri, even though some of the damage was sustained in New South Wales. It is unnecessary to repeat what the joint judgment says in that regard. And although the joint judgment has approached the determination of the appeal by concluding that New South Wales is clearly an inappropriate forum in which to permit the action to proceed, the reasons which lead to that conclusion point also to Missouri as the more appropriate forum. Again, it is unnecessary to do more than adopt the reasons of Mason C.J., Deane, Dawson and Gaudron JJ. in that regard.
27. I would therefore allow the appeal and order a stay of proceedings. I agree with the orders proposed.
Appeal allowed with costs.
Set aside the order of the New South Wales Court of Appeal and, in lieu thereof, order that:
(i) the appeal to that Court be allowed with costs;
(ii) the orders made by Clarke J. on 13 November 1986 be set aside;
(iii) the action be stayed on condition that the appellant, in any
proceedings which the respondents bring in Missouri
concerning the subject-matter of these proceedings, undertakes
not to plead any defence based upon any statute or other law
relating to the limitation of actions, provided the
respondents commence their proceedings in Missouri within
three months of this order; and
(iv) the respondents pay the appellant's costs of the
proceedings before Clarke J.