Material change in circumstances

*Carvalho v. Hull, Blyth (Angola) [1979] 1 WLR 1228 (Materials, p 23)
Facts – material change in circumstances in the exclusive juris. C was a long time resident in Angola and sold business to English co which also had a presence in England with purchase price to be paid in instalments and last one not paid. Civil war in Angola with a substantial change in the legal system. Where in the event of litigation the exclusive court was that of Angola.
Court – material change in circumstances (no suggestion that there is nothing inferior in courts of Angola). In 1973 the judges were all portugese judges with portugese law and later mixture of indigenous and Marxist law also right of appeal had been removed.

Quality of justice in the foreign court?

*The El Amria [1981] 2 Lloyd’s Rep 119 (Brandon LJ) (see Materials, p 22J)

Facts – P arg that justice administered in English courts was inferior to that of English courts. This was against the idea of comity and so needed substantial evidence.
Court – it is inappropriate in an application for a stay of proceeding to caste dispersions on the quality of justice of a foreign court.

(ii) Forum non conveniens ("clearly inappropriate forum"). Local proceedings oppressive (seriously and unfairly burdensome, prejudicial or damaging) or vexatious (productive of serious and unjustified trouble and harassment). Factors relevant to the exercise of the court’s
discretion: the relative convenience and expense to the parties of litigation in the forum or in a foreign country, including the availability of witnesses; whether the lex fori or foreign law is the applicable substantive law; the respective places of residence of the parties; whether a stay of proceedings will deprive the plaintiff of a legitimate personal or juridical advantage in the forum; in cases of service outside Australia, “clearly inappropriate forum” = “inappropriate forum” in r 11.7. Onus on the defendant to demonstrate that the forum is clearly inappropriate

Aus court will decline to recognise juris if D (onus is on D) says proceedings are oppressive or vexatious. Definitions by Dean J., and accepted in Voth v Manildra flour mills.

Aus courts will rarely grant vexatious proceedings.

Inappropriateness of the jurisdiction invoked by the plaintiff

Egbert v. Short [1907] 2 Ch 205

Facts – E was a US citizen living in India. Alleged by E that S had acted in breach of trust. D was an British expat who returned to England on holiday that was served on last day in E.
Court – no legitimate connection with England and as S had to carry on practice in India so said there the case was only brought to be vexatious i.e to harass the D.

Puttick v Tenon [2008] HCA 54

Facts - Lung disease of Mr P and died so spouse brought proceedings. P employed by T sent to Malaysia and contracted mesothelioma so launched action against T. T was under CL juris of Vic as multinational corp.
Court – just because foreign law is the applicable law doesn’t mean that an Australian court is clearly inappropriate. VICSC said place where tort was committed was NZ yet normally say act was where act that gives rise to cause of complaint. Court said this was of employer’s failure to warn P of danger when visiting Malaysia.
Court – VICSC did not have enough facts to determine where the tort took place. Technique that even if NZ was COL then VIC would not be an inappropriate forum so to turn P away from VIC would mean they would have no remedy.

*Voth v. Manildra Flour Mills (1990) 171 CLR 538 (Materials, p 34)

Applied and accepted Deane J., decision in (O v F)

Facts – D was an accountant carrying on business in Missouri. P (M) had North American subsidiary for which V was their accountant and gave negligent tax accounting services. Thus P suffered pure (only) economic loss in NSW (which is a loss different to that of Renault or Oceanic where these P’s would be seriously disadvantaged and could be a life and death matter as opposed to PEL (only 1 successful application of FNC in AUS for personal injury).  NSWSC has personal juris due to tort damage economic loss in NSW under UCPR e). V had membership of accounting association which was at risk thus applied for a stay of proceedings.
Issue – whether forum invoked by P is clearly inappropriate? So may apply the lex causae (law dealing with particular COA). Accountant had significant connections (in 1990 would have to be actionable in Missouri and also not condoned there).Negligence was in connection with US tax law advice and greater part of evidence was in Missouri. Connections with NSW – loss entirely in NSW so would need to have regard to NSW law (legal costs exceeded amount in issue and P would be allowed to get legal costs in NSW and could get interest costs in NSW) (test in NSW is that NSW is an inappropriate (vexatious and oppressive) forum and not that Missouri is a more appropriate forum).
Court- NSW was irresistibly an inappropriate forum.

*Regie Nationale des Usines Renault v. Zhang (2002) 187 ALR 1 (Materials, p 152)

Facts - applied for stay of proceedings based on inappropriate forum. Similar to (V v M).
Court – applying French law does not mean that NSW is an inappropriate forum. Para 82 Gleeson, Gaudron, Gummow, Hayne JJ., “has the D demonstrated that NSW is an inappropriate forum”

“[V]ery much a matter of impression”

*James Hardie Industries v. Grigor (1998) 45 NSWLR 20 (Mason P) (Materials, p 62)

Facts – G was a NZ resident and exposed to building products made in NSW (failure to warn in NZ) by JH so brought claim in NSW which had CL juris yet JH applied for stay of proceedings due to FNC. Tort occurred in NZ before 1974 before no fault system with tort damage entirely in NZ.
Court – no 2 cases are the same wrt FNC. Despite substantial connections with NZ the court refused to exercise FNC as evidence was in NSW and DDT in NSW and its legis confers on P’s substantial advantages in terms of evidence.

Pg. 37
P – NZ resident, suffered asbestos exposure in NZ, supplied by Hardy
P commenced proceedings in NSW
Accident rehabilitation act barred proceedings in NZ
Taken away right to sue for damages
Sued in NSW
Case was about choice of law in torts
Q: where the tort occurred
NSW court held, if D owed duty of care to P by supplying asbestos to NZ employer knowing it was used by employees, breach was failure to warn of the dangers to the employees of exposure
So far as P relied on relationship, case not in failing to warn, but ensure by means of capacity that workplace was safe
Place of tort where warning should have operated, and where system of work should have been safe
Two torts
Both places in NZ
Treating export of asbestos from Australia does not make place of tort in NSW
Need to look at the whole series of events
As in Distillers

Unreasonable delay in foreign court

*HRH Maharanee of Baroda v. Wildenstein [1972] 2 QB 283 (Supplementary Materials)

Facts – P was an Indian princess living in France who purchased a painting from Wildenstein as original work of art. Painting was found to be a fake so M looks to rescind K and get refund of purchase price. M sought to commence proceedings in English HC yet W was not present in E. One day each year W went to England to see races so on this day he was served with the originating process.
Court – service was effective despite W having no other relation with E, where presence via a fleeting visit is sufficient to confer CL juris on E courts. In order for stay of proceedings W would have to prove the proceedings were vexatious or oppressive which is negatived by a legitimate personal/juridical advantage. This was due to the inordinate delay in French courts (as suggested by Denning J., thus example of judicial notice) (yet was it up to the judge to comment that it wasn’t vexatious as in proof of law matters there is an assumption that it is the same). Real reason why brought in E was that whether the remedy was available for rescission was a procedural matter to be determine by forum.

Toop v. Mobil Oil New Guinea [1999] VSC 11

Facts – T was a resident of VIC a legal practitioner working in PNG during armed hold up in Mobil services station. T contended that M was negligent in not having sufficient security measures in place so brought negligence action in vic. M arg that vic was not a clearly inappropriate forum due to substantial delay of 5yrs in the hearing of the claim in PNG.

Stay of proceedings will be refused for FNC if it would deny P a legal remedy and thus be unfair.

Denial of justice; public interest considerations?

*Lubbe v. Cape [2000] 1 WLR 1545 (Materials, p 63A)

Asbestos injury case from perspective of PIL. Test case.

Facts – 3000 plaintiffs’ test case alleged they had been exposed to asbestos and associated products in South Africa. C was co mining asbestos in SA and only one of P’s was a resident of SA and of modest means. C winded up business in SA and took all assets to UK. In England FNC is more advantageous to D i.e have to establish that courts are more appropriate. HoL said a stay of proceedings would be a denial of justice as P was also represented on a, no win, no fee basis. 
Court – Public interest considerations not related to the interests of either parties are irrelevant to FNC.

*James Hardie Industries v. Grigor (1998) 45 NSWLR 20 (Spigelman CJ; Mason P) (Materials, p 63B)

Court – Spigelman, Mason J., not permissible to give effect to public interest considerations.