CMA CGM SA v Ship ‘Chou Shan'

The case of CMA CGM SA v Ship 'Chou Shan' involved the appellant, CMA CGM SA, which sought a stay of proceedings in the Australian Federal Court in relation to a maritime collision that occurred in the waters of a coastal state's exclusive economic zone. The respondent, the owner of the ship 'Chou Shan', opposed the application for a stay. The legal issues in the case revolved around the application of the 'clearly inappropriate forum' test in determining whether Australian proceedings should be stayed in light of other proceedings in China. The primary judge's application of the 'natural and obvious forum' test, rather than the 'clearly inappropriate forum' test, was also scrutinised, as was the adequacy of the primary judge's consideration of juridical advantage in assessing whether Australia was a clearly inappropriate forum.

The majority of the court found that the primary judge did not misapply Australian principle by using expressions such as 'natural and obvious forum' or by examining factors relating to the suitability of China as a forum. The court emphasised that the focus of the 'clearly inappropriate forum' test is on the chosen local forum's advantages and disadvantages, rather than on a true comparative analysis between the local forum and an alternative foreign forum. The majority noted that the primary judge had adequately considered juridical advantage in the local court, even though this consideration was intertwined with the suitability of the alternative forum. The court also highlighted that the 'clearly inappropriate forum' test avoids the difficulty of deciding whether a plaintiff will obtain justice in a foreign court.

Ultimately, the appeal was dismissed and the appellants were ordered to pay the respondents' costs. The court granted leave to appeal in terms of the draft notice of appeal filed, which stood as the notice of appeal without the need for a further document.