By Matt Kearins

For Australian ex-pats, citizens overseas, or even individuals with significant business in Australia, knowing where to start legal proceedings can be a tricky situation.

If you’re trying between starting proceedings in Australia or another country, it is important to have an understanding of forum non conveniens. This is a legal principle that aims to decide whether or not the Court in which proceedings have begun is ‘the most appropriate forum.’

Voth v Manildra Flour Mills Pty Ltd (1990)

Forum non conveniens was first applied in the case of Voth v Manildra Flour Mills Pty Ltd. Within this case, the test for a ‘clearly inappropriate forum’ was created to test whether Australian Courts should decline jurisdiction based on forum non conveniens. Because of this the test is known as the Voth Test.

The Voth Test examines the following criteria:

  1. The plaintiff has the right to have the Australian Court exercise the jurisdiction regularly invoked by the Court, unless they are satisfied that the forum is clearly inappropriate.
  2. The onus of establishing forum non conveniens lies upon the party who is seeking a stay of proceedings, or that the proceedings be set aside. This is often the defendant.
  3. The following factors are considered relevant in determining the appropriateness of a forum. They are all considered equal, with no factor trumping another:
    1. Significant connections between the Australian Courts and the subject matter of the action and/or parties. This can include the places of business, the homes of the parties, the location where the transaction of the subject matter took place, or where the majority of the subject matter is located.
    2. Any legitimate and/or substantial advantage afford to the plaintiff because of jurisdiction.
    3. The availability of an alternative forum and whether that would provide the plaintiff sufficient relief
    4. Whether the Law of the Australian Courts will be able to provide a ruling that will operate as substantive law in wherever the case is to be resolved.

Parties who decide to start multiple cases of litigation in various forums will often fail the Voth test. This is because the Australian Courts will not accept litigation they determine to be vexatious or oppressive.

CSR Ltd v Cigna Insurance Australia Ltd (1997)

The Voth Test was revisited in the case of CSR Ltd v Cigna Insurance Australia Ltd. In this case the High Court of Australia reimagined the Voth Test and decided that the question of forum non conveniens should focus on whether, ‘as a whole,’ the proceedings in Australia can be considered vexatious or oppressive. This determination is to be made in accordance with the Voth Test.

Which ‘Voth Test’ Factors are Relevant for you?

In helping determine whether or not you should begin proceedings in Australia, there are several factors you can look at.

‘Connecting factors’ can include the places of business, the homes of the parties, the location where the transaction of the subject matter took place, or where the majority of the subject matter is located. If the majority of the subject matter falls under Australian law, it would be appropriate for it to be dealt with by the Australian Courts.

Legitimate and substantial jurisdictional advantages can be described as any advantage the plaintiff may benefit from by having the proceedings dealt with in Australia. This can include more favourable periods of limitation, recovery, and even better or clearer procedures.

When determining vexatious or oppressive litigation, it is important to consider whether proceedings have already begun in a different jurisdiction. It is often considered vexatious and oppressive litigation to commence a second action in a different jurisdiction which deals with the same subject matter as the first case.

The factor of substantive law from the Voth Test focuses on whether a ruling from the Australian Courts can be applied in determining the rights and liabilities of the parties to proceedings. This factor may not be decisive. However, if the Court determines another jurisdiction’s ruling would better determine the rights and liabilities, this would be a significant decision.

Where to Go from Here?

If you are currently living overseas, or are in Australia, and dealing with legal proceedings that could affect you across several countries, the first step should be contacting a legal professional.

At Hansons Lawyers, we have experience assisting our clients, both locally and internationally. We are ready to help guide you through your proceedings and help you decide whether or not the Australian Court system is correct for you.

Contact Hansons Lawyers today and let us assist you in your international proceedings.