The Inappropriate Forum Test: Does the Court have Appropriate Jurisdiction to Hear my Matter?
This article explores the Queensland Supreme Court’s discretion under rule 127 (2)(b) of the Uniform Civil Procedure Rules 1999 (Qld) to dismiss a case in matters where the court is an inappropriate forum or trial of the proceeding.
This article will delve into cases and commentary around rule 127 (2)(b) and additionally the common law doctrine of forum non conveniens (Latin for ‘inconvenient/inappropriate forum’) and the Australian tests used to determine whether a court should assume jurisdiction.
Instituting Proceedings in the Supreme Court
To commence civil proceedings the plaintiff must institute proceedings against the defendant, by way of complying with the relevant sections of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). This is typically by way of serving a ‘claim’ and ‘statement of claim’ on the defendant, which are court documents that set out the basis of the plaintiff’s claim (the cause of action). If proceedings are instituted correctly, the dispute between parties can begin to progress though the relevant court.
Correct service of originating documents is very important. If compliance with the UCPR is not strictly followed, there may be delays in the progression of the matter. Serving parties outside of Australia can in some cases, require the ‘leave of the court’, being the courts permission for the originating process to commence.
Rule 125 of the UCPR outlines several circumstances whereby service outside of Australia is permitted, without the need to seek the courts leave.
Additionally, rule 126 of the UCPR outlines circumstances where service outside of Australia is allowed with the courts leave. It is clear that in most scenarios there needs to be a linkage with Australia, whether an element of the dispute in question had taken place, originated from, was partly performed within Australia, whether it concerns Australian law and/or whether the person in question is a necessary party to the proceeding in Australia.
A notable circumstance for service outside of Australia without leave that will be explored throughout this article, is rule 125 (a) which prescribes that:
If the claim is founded on a tortious act or omission –
- That was done or that happened wholly or partly in Australia; or
- In respect of which the damage was sustained wholly or partly in Australia.
Uniform Civil Procedure Rules 1999 (Qld): Rule 127(2)(b)
In matters where an originating process is served on a defendant outside of Australia, the defendant may make an application to have the case dismissed on the basis that there is a more appropriate court or forum to hear the case. Rule 127 of the UCPR outlines the courts discretion to assume jurisdiction when an application of this nature is made.
As prescribed by rule 127 (2)(b) the court may exercise its discretion to dismiss or stay proceedings or set aside the service of the initiating process if the court is satisfied that it is an inappropriate forum for the trial of the proceeding. This provision along with the other considerations of the court when determining whether to assume jurisdiction are outlined in section 127 of the UCPR as follows:
127 Court’s discretion whether to assume jurisdiction
(1) On application by a person on whom an originating process has been served outside Australia, the court may dismiss or stay the proceeding or set aside service of the originating process.
(2) Without limiting subrule (1), the court may make an order under this rule if satisfied—
(a) service of the originating process is not authorised by these rules; or
(b) the court is an inappropriate forum for the trial of the proceeding; or
(c) the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the claim.
‘Forum non conveniens’ – Inconvenient/Inappropriate Forum
The question of whether a court has appropriate jurisdiction to hear a matter is not infrequent. The common law principle of forum non conveniens, holds that the court has discretion to dismiss a matter if a more appropriate or convenient court or forum is better placed to hear the case. This common law principle is adopted internationally across common law countries, however the tests involved in determining whether the court will exercise their discretion differs. In the United Kingdom, much of the case law looks at the appropriateness of the other forum, the “more appropriate forum test” adopted from the case of Spiliada Maritime Corporation v Cansulex Ltd.
In Australia, the application of forum non conveniens has been explored overtime in several cases, with the favorable approach being focused on the court’s own appropriateness. As it stands, the current test applied in Australia, the “clearly inappropriate forum test” arose out the High Court in Voth v Manildra Flour Mills Pty Ltd (‘Voth’).
The ‘Voth’ Test
In this case the High Court adopted the test in Oceanic Sun Line Special Shipping Co v Fay, being that a stay of proceedings should be granted if the local court is a clearly inappropriate forum. Grounds for an inappropriate forum are where continuation of proceedings would be oppressive, vexatious or an abuse of process. The test considers the effects on the defendant if proceedings are continued.
In Voth it was held that the onus of establishing forum non conveniens is on the party who is seeking a stay of proceedings/that proceedings be set aside. In most cases this onus will therefore be on the defendant, who must persuade the court that it is a clearly inappropriate forum for the determination of the dispute between parties, and that continuation would be oppressive or vexatious.
Case Study – Courtney v Chalfen  QCA 294
The matter began in the Brisbane Supreme Court where Mr Courtney, who resided in Queensland, Australia, had instituted proceedings against his former wife, Ms Chalfen who resided in the Cayman Islands. Ms Chalfen made an application to set aside service or stay the proceedings under rule 127 of the UCPR. With the Supreme Court decision to permanently stay the proceedings, the matter proceeded to an Appeal upon the application of Mr Courtney (the appellant). The Court of Appeal ultimately decided to strike out the application and dismiss the Appeal.
Mr Courtney, the appellant, was seeking damages from Ms Chalfen, the respondent, for his missing property that was removed from the respondent’s apartment in the Cayman Islands and placed in a storage unit. The appellant claimed that there had been a conversion of his goods and a breach of a bailment condition. The Primary Judge in the Supreme Court matter looked at whether the claim fell within rule 125 of the UCPR, to consider whether the appellant was authorised to serve the claim and statement of claim without the leave of the Supreme Court. The appellant contended that he did not require leave of the court to serve the respondent in the Cayman Islands due to rule 125 (a)(ii) of the UCPR, submitting that the claim was founded on a tortious act or omission as the damage was sustained wholly or partially in Australia. An important consideration of rule 125 and 126 of the UCPR was necessary to determine whether the courts leave would have been given to institute proceedings in the first place.
The Her Honour Williams J in the Queensland Supreme Court hearing determined that the proceedings be permanently stayed on the basis that the court was the inappropriate forum for the proceedings, pursuant to rule 127 (2)(b) and the Voth test. Her Honour summarised some relevant factors in applying the Voth test, notably that ‘oppressive’, means seriously and unfairly prejudicial or damaging, and, ‘vexatious’ means unjustifiable trouble or harassment. In this case, there were a number of reasons why the Supreme Court of Queensland was the ‘inappropriate forum’ notably that the respondent was unable to travel to Australia due to serious health problems, all witnesses other than the appellant lived in the Cayman Islands, the causes of action and loss arose in the Cayman Islands and the law of the Cayman Islands applied to the causes of action. Ultimately, Her Honour exercised her discretion under rule 127 of the UCPR, and upon balancing the various factors in Voth held that continuing the litigation in the Supreme Court of Queensland was oppressive and vexatious, as it was unfairly prejudicial and unjustifiably troublesome to the applicant.
Failing to consider the appropriate rules under the UCPR, such as correctly instituting proceedings, ensuring correct service, seeking the leave of the court where necessary, and considering the appropriate jurisdiction of the court, may have strong effects on your prospects of success.
If you are looking to institute proceedings in the Supreme Court of Queensland, or if proceedings have been brought against you in the Supreme Court of Queensland, the expert litigation lawyers at Potts Lawyers is ready to assist you. We can assist in complex matters whereby parties may reside overseas or proceedings where the appropriate jurisdiction of the court is in question. Please contact us on (07) 5532 3133 for our Gold Coast Law Firm or (07) 3221 4999 for our Brisbane Law Office.
This article is a guide and should not be considered legal advice.
  AC 460;  UKHL 10.
 (1990) 171 CLR 538;  HCA 55.
  HCA 32; (1988) 165 CLR 197.
 Courtney v Chalfen  QCA 294 .
 Ibid .
 Courtney v Chalfen  QSC 195 .