Garsec Pty Ltd v His Majesty The Sultan of Brunei - [2008] NSWCA 211

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Garsec v His Majesty The Sultan of Brunei [2008] NSWCA 211

HEARING DATE(S): 2 April 2008

JUDGMENT DATE:
5 September 2008

JUDGMENT OF: Spigelman CJ at 1; Hodgson JA at 28; Campbell JA at 32

DECISION: 1. Leave to appeal granted.
2. Direct Claimant within 14 days of the date of delivery of these reasons for judgment to file, as a Notice of Appeal, the Amended Draft Notice of Appeal already provided to the Court.
3. Appeal dismissed.
4. Claimant to pay costs of the Opponents of the application for leave to appeal, and of the appeal.

CATCHWORDS: PRIVATE INTERNATIONAL LAW – Stay of proceedings – Claimant sought order for specific performance of alleged agreement for sale of manuscript copy of Holy Koran – claims in alternative for breach of warranty of authority and negligent misstatement – Opponents filed Notices of Appearance – Choice of law – lower court found proper law of alleged contract and law governing claim in tort was law of Brunei – Art 84B Constitution of Brunei conferred immunity from suit on the Sultan in a personal and official capacity and on persons acting on behalf or under the authority of the Sultan in an official capacity – Court declined to exercise jurisdiction on grounds of clearly inappropriate forum – appeal – source of power of the Court to stay proceedings – power of court to dismiss proceedings which are oppressive, vexatious or an abuse of process – meaning to be attributed to “oppressive” and “vexatious” – relevant connecting factors – legitimate personal or juridical advantage – s 67 Civil Procedure Act 2005 – r 11.7 and r 12.11 Uniform Civil Procedure Rules – Part 10 r 6A and Part 11 r 8 Supreme Court Rules 1970 – whether r 11.7 UCPR imports principles of forum non conveniens as articulated from time to time in Australian law – whether constitutional immunity substantive or procedural for choice of law purposes – relevance of purposes for which distinction between substantive and procedural is made for choice of law purposes – significance of expert evidence as to substantive nature of immunity under law of Brunei – whether history and rationale of immunity is such that it has no relevant application outside the Courts of Brunei – whether unavailability of alternate forum for bringing proceedings was a decisive consideration against a finding of clearly inappropriate forum – whether unavailability of alternative forum amounts to legitimate juridical advantage – whether likelihood that substantive proceedings would require interpretation of a foreign constitution was a factor weighing against continuation of proceedings – legitimacy of bringing the substantive proceedings in New South Wales

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Application of Law Act 1951 (Brunei)
Civil Procedure Act 2005
Constitution of Brunei
Contracts Act (Brunei)
Crown Proceedings Act 1947 (UK)
Penal Code (Brunei)
Personal Injuries Proceedings Act 2002 (Qld)
Prevention of Corruption Act (Brunei)
Sherman Act (US)
Succession and Regency Proclamation (Brunei)
Supreme Court Rules 1970
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Akai Pty Limited v The Peoples Insurance Co Limited [1996] HCA 39; (1996) 188 CLR 418
Amaca Pty Ltd v Frost [2006] NSWCA 173; (2006) 67 NSWLR 635
Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50
Amwano v Parbery [2005] FCA 1804; (2005) 148 FCR 126
The "Atlantic Star" [1974] AC 436
Best Australia Ltd v Aquagas Marketing Pty (1988) 83 ALR 217; (1988) 12 IPR 143
Bonython v Commonwealth of Australia [1951] AC 201
The Commonwealth of Australia v Mewett [1997] HCA 29; (1997) 191 CLR 471
CSR Limited v Cigna Insurance Australia Limited [1997] HCA 33; (1997) 189 CLR 345
Feather v R (1865) 6 B & S 257; 122 ER 1191
Garsec v His Majesty The Sultan of Brunei [2007] NSWSC 882; (2007) 213 FLR 331
Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48
Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Hyde v Agar (1998) 45 NSWLR 487
James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Lube v Cape Plc [2000] 1 WLR 1545
Macbeath v Haldimand (1786) 1 TR 172; 99 ER 1036
MacShannon v Rockware Glass Ltd [1978] AC 795
McKain v RW Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331
News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250
Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
Pendal Nominees Pty Ltd v M & A Investments Pty Ltd (1989) 18 NSWLR 383
Potter v Broken Hill Pty Co Ltd [1906] HCA 88; (1906) 3 CLR 479
Regie Nationale des Usines Renault v Zhang [2002] HCA 10; (2002) 210 CLR 491
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460
St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382
Thomas v the Queen (1874) LR 10 QB 31
Tobin v R (1864) 16 CB (NS) 310; 143 ER 1148
Viscount Canterbury v Attorney General (1843) 12 LJ Ch 281; 41 ER 648
Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277
Voth v Manildra Flour Mills Proprietary Ltd [1990] HCA 55; (1990) 171 CLR 538

TEXTS CITED: L Collins (ed), Dicey, Morris and Collins on the Conflict of Laws, 14th ed (2006) Sweet & Maxwell
WW Cook, Logical and Legal Bases of the Conflict of Laws (1942) Harvard University Press
D McClean and K Beavers, Morris: The Conflict of Laws, 6th ed (2005) Sweet & Maxwell
PW Hogg and PJ Monaghan, Liability of the Crown, 3rd ed (2000) Carswell

PARTIES: Garsec Pty Ltd (Appellant)
His Majesty Sultan Haji Hassanal Bolkiah Mu'Izzaddin Waddaulah the Sultan and Yang Di-Pertuan of Brunei Darussalam (First Respondent)
Pehin Orang Kaya Shad Bandarhj Awang Mohd Nawawi bin Pehin Orang Kaya Shah Bandar Hj Awang Mohd Taha (Second Respondent)

FILE NUMBER(S): CA 40579/07

COUNSEL: NC Hutley SC; SJ Free (Appellant)
JT Gleeson SC; SA Kerr (Respondents)

SOLICITORS: Swaab Attorneys, Sydney (Appellant)
Clayton Utz (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 50183/06

LOWER COURT JUDICIAL OFFICER: McDougall J

LOWER COURT DATE OF DECISION: 15 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Garsec v His Majesty The Sultan of Brunei [2007] NSWSC 882

CA 40579/07
SC 50183/06

SPIGELMAN CJ
HODGSON JA
CAMPBELL JA
5 SEPTEMBER 2008

GARSEC PTY LTD v HIS MAJESTY THE SULTAN OF BRUNEI

Judgment

1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Campbell JA in draft. For the reasons given by his Honour the constitutional provisions in Brunei which protect the Sultan from suit are substantive, rather than procedural, for purposes of the Australian choice of law rules. On the authorities to which Campbell JA refers, an Australian court would apply the law of Brunei with the consequence that the proceedings in Australia against the Sultan are futile. Accordingly, the order Justice McDougall made was correct.

2 In the case of the second respondent, Pehin Nawawi, the same result would ensue if it were established as a fact that he was acting in an official capacity, within the meaning of the Constitution of Brunei. Accordingly, in his case, there is a preliminary issue. If that issue were tried here it would require a trial court in this State to interpret the Constitution of Brunei. For the reasons Campbell JA gives, that is inappropriate. This is a matter entitled to substantial weight when determining whether New South Wales is a clearly inappropriate forum.

3 In his case, the determinative substantive law is not directly applicable, but is only one factual finding removed. All relevant witnesses and other evidence that could be adduced on the issue are located in Brunei. New South Wales is a clearly inappropriate forum to determine the threshold fact.

4 It is appropriate to note a particular feature of this case. The respondents, despite their reliance on sovereign immunity, voluntarily submitted to the jurisdiction of the court.

5 Originally the pleading suggested that the contract was formed in New South Wales and made other jurisdictional allegations. Subsequently, when the facts could not support these contentions the appellants abandoned them. By reason of certain steps taken with respect to the proceedings, McDougall J found that the respondents had lost their right to withdraw the appearance they had lodged in response to the original, but withdrawn, pleading. Although the circumstances in which the respondents filed an appearance did fundamentally change, they took no steps to protect their position, contrary to the advice they received. Indeed, they invoked the Court’s jurisdiction and, as McDougall J found, sought to gain an advantage by filing an appearance. There is no appeal from that part of his Honour’s judgment in which he refused leave to withdraw the respondents’ appearance.

6 McDougall J also considered the position by analysis of what his Honour referred to as the “Voth factors”, on the assumption that he was in error with respect to the characterisation of the relevant constitutional provisions as substantive rather than procedural. His Honour’s conclusion in this respect involves the weighing of disparate and incommensurable factors for purposes of formulating an overall judgment. This is the kind of decision with which this Court is reluctant to intervene.

7 Nevertheless, if I had come to a different conclusion with respect to the first issue, in my opinion his Honour erred by giving inadequate weight to the fact that the stay would have the consequence that no proceedings could be successfully pursued in Brunei.

8 The critical passages in the analysis of McDougall J are (Garsec v His Majesty the Sultan of Brunei [2007] NSWSC 882; (2007) 213 FLR 331):

CSR Limited v Cigna Insurance Australia Limited

Voth

…

[125] An analysis of the competing connections of Brunei and New South Wales to the subject matter of the proceedings requires the conclusion that this Court is a clearly inappropriate forum. That proposition would be incontestable but for Garsec’s submissions as to legitimate juridical advantage. On analysis, however, those submissions do not detract from the conclusion.

Voth

‘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.’

[127] Garsec submitted (outline, para 56) ‘that the majority had in mind a situation in which there was an alternative, non-judicial system in place in a foreign jurisdiction for providing the plaintiff with a remedy in respect of the loss or damage that is the substance of the proceedings’.

[128] I do not think that the proposition should be read down in this way. To do so would in effect require attention to be given not to the suitability of the forum (which is what is involved in the ‘clearly inappropriate forum’ test) but to the suitability of the competing forum (which is what is what is involved in the ‘clearly more appropriate forum’ test, rejected by their Honours).

[129] The second reason for rejecting the submission relates to the assumption on which it is founded. I have concluded that the immunities given by Article 84B of The Constitution of Brunei are substantive and not procedural. I have also concluded that the law of Brunei is the proper law of the alleged contract and the law applicable to the alleged tort. Thus, if the proceedings were heard in this Court, the substantive law of Brunei including those immunities (to the extent that they might be found to be applicable) would be applied. On that basis, the legitimate juridical advantage for which Garsec contends would disappear. On the other hand, if I am wrong, in both assumptions, then this Court might not give the Sultan the benefit of the immunities. For the reasons that I have given in para [73] above, that in itself would be oppressive. In other words, the counterpart of Garsec’s legitimate juridical advantage is an equivalent juridical disadvantage to the Sultan and Pehin Nawawi. In those circumstances, I do not think that the alleged legitimate juridical advantage should be regarded as dispositive.”

9 As quoted above, his Honour at [73] and [129] applied the joint judgment in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 401, to the effect that invoking the jurisdiction in that case was “oppressive in the Voth sense”. The relevant passage from the judgment is:

Voth

10 On the assumption that the constitutional immunity was procedural, this passage is applicable because “different issues are involved in the local and foreign proceedings”. Accordingly, his Honour applied the correct test. The critical step is his Honour’s conclusion that the availability of the immunity by way of a defence was equivalent to the circumstances in CSR v Cigna, which the High Court determined justified a stay in that case.

11 The relevant statements in the joint judgment are:

Voth

there is nothing to suggest that the relief which the respondents seek in the NSW proceedings

is not available to them by way of cross-claim in the US proceedings

12 This analysis, by its reference to the availability of the same relief in the foreign proceedings, reflects the proposition stated in the majority judgment in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558:

“The availability of relief a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one.”

13 The obverse must also be the case. The inability to obtain relief in the foreign forum must also be relevant, albeit not decisive. (I note that a complete immunity from suit differs from a law restricting the scope of recovery considered in James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 at 37-38, to which the respondents’ counsel referred.)

14 Although McDougall J quoted the sentence from Voth about the relevance of availability of relief in the foreign forum, his Honour did not appear to give it effect.

15 His Honour focused at [126] of his reasons, on the fact that the majority in Voth indicated that, on the Australian test, it could be the case that there would be no other court that could hear the case. His Honour then reasoned (at [128]) that one submission of the appellants focused on “the suitability of the competing forum” rather than on the appropriateness of the domestic forum. His Honour did not give express consideration to the opening sentence of the passage in Voth to the effect that “availability of relief” in the competing forum is “always … a relevant factor”.

16 As Campbell JA indicates, the English test of whether another jurisdiction constitutes the appropriate forum necessarily encompasses the assumption that that forum is “available”, in the words of the critical passage in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 476. As Lord Bingham said, after referring to Spiliada, in Lube v Cape Plc [2000] 1 WLR 1545 at 1554D an applicant for a stay must “establish that there is another available forum which is clearly or distinctly more appropriate than the English forum” and went on to state at 1554E-F:

“If the Court concludes … that there is no other available forum which is clearly more appropriate for the trial of the action, that is likely to be the end of the matter.”

17 As noted above, Voth at 558-559 clearly contemplates a different result. (See also Toohey J at 587.) The fact that a possible consequence of the test adopted for Australian law is that the Australian forum could be regarded as “clearly inappropriate”, even though proceedings could not be commenced in any other forum, is not in any way conclusive.

18 The fact that such a consequence can ensue from the application of the Australian test does not determine the question of the weight to which this fact may be entitled when forming the overall judgment which the Australian test requires ie is the Australian jurisdiction a “clearly inappropriate forum”? In my opinion, the fact that it is the only forum in which relief may be available should generally be entitled to significant weight.

19 As Campbell JA notes, in the passage in the judgment of Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 248, which is the passage that identified the principle that has ultimately been accepted as authoritative for Australian law, his Honour referred to the onus on an applicant to satisfy the court:

“[T]hat it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him.”

“Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff.”

20 In my opinion, this reasoning is applicable in the present case. The respondents cannot identify an “appropriate foreign tribunal to whose jurisdiction the [appellants are] amenable and which would entertain the particular proceedings”.

21 Furthermore, the passage in CSR v Cigna, emphasising that the plaintiff in New South Wales could pursue its remedies by cross-appeal in the foreign proceeding was an important part of the reasoning in that case. There is nothing equivalent to that here.

22 In my opinion McDougall J erred in equating the facts in CSR v Cigna with the defences available only in the Brunei courts, on the assumption which his Honour made. It cannot be said that “there is nothing to suggest that the relief which the [appellants] seek in the New South Wales proceedings … is not available to them by way of cross claim” in Brunei. Indeed, the contrary is plainly established.

23 Finally, I am not satisfied that the “juridical advantages” in the case of the appellants and of the respondents are “equivalent” as McDougall J states in his [129]. In any event, where the applicant for a stay must satisfy the court that New South Wales is clearly an inappropriate forum and/or that the proceedings are vexatious or oppressive, equivalence means that this element counts against a stay.

24 A critical step in his Honour’s reasoning at [73] is the proposition that instituting proceedings “to prevent the other party from enjoying defences” is equivalent to bringing proceedings “to prevent the opposing party from pursuing remedies”. His Honour omits the critical reference in the High Court’s reasoning in CSR v Cigna set out at [11] above that the proceedings were brought in Australia for that “dominant purpose”. In my opinion, it cannot be said that the present proceedings were brought in Australia for the dominant purpose of denying a defence. The dominant purpose was, in my opinion, to enforce the alleged contract. That one “purpose” was to avoid a procedural law in the lex loci explains why the proceedings were instituted in Australia, but does not make that the dominant purpose of the proceedings.

25 I recognise that there is something artificial about proceeding on the assumption that a rule as significant as sovereign immunity is procedural rather than substantive. However, as Campbell JA notes, procedural rules can sometimes have dramatic effects on the course of litigation. McDougall J found against the appellants on an alternative basis in which, in my opinion, his Honour erred.

26 In view of my conclusion on the first issue, it is unnecessary to decide whether this Court should determine whether a stay should be granted or remit the matter. I would be inclined to the latter, but it is unnecessary to decide the issue.

27 I agree with the orders proposed by Campbell JA.

28 HODGSON JA: I agree with Spigelman CJ and with Campbell JA that, for the reasons given by Campbell JA, the constitutional provisions in Brunei which protect the Sultan from suit are substantive, for the purposes of Australian choice of law rules.

29 I agree with Spigelman CJ and with Campbell JA that determination of whether the second respondent was entitled to the same protection would require interpretation of the Constitution of Brunei, and that it would be undesirable for this to be undertaken by a New South Wales court.

30 For those reasons, I agree with the orders proposed by Campbell JA.

31 In other respects, I agree with Spigelman CJ.

32 CAMPBELL JA:

33 The Claimant brought proceedings in the Equity Division of this Court relating to an alleged agreement for the sale of an old, rare and beautiful manuscript copy of the Holy Koran (“the Manuscript”). As the Claimant’s claim was ultimately put, three causes of action were relied on, against two defendants.

34 The first defendant was His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam (“the Sultan”). The second defendant, Pehin Nawawi, at all relevant times was the Private and Confidential Secretary of the Sultan. The Sultan was served out of the jurisdiction. Pehin Nawawi has not been served, but the proceedings have come to his attention and he has engaged the same Australian solicitors as has the Sultan to deal with the matter on his behalf.

35 The first cause of action sued upon alleged that a contract was made in April 2005 between the Claimant and the Sultan for the sale of the Manuscript to the Sultan for a price of US$8m, that the Sultan has failed to perform that contract, and that by virtue of the unique character of the Manuscript it was appropriate to order that the contract be specifically performed. The second and third causes of action were brought against Pehin Nawawi in the alternative to the claim against the Sultan. The contractual claim against the Sultan had alleged that Pehin Nawawi was part of a chain of communication through which the Claimant had communicated to the Sultan an offer to sell the Manuscript to the Sultan, and the Sultan had communicated acceptance of that offer to the Claimant. The alternative claims against Pehin Nawawi alleges that he had represented that he had authority from the Sultan to receive the offer, and to communicate acceptance of the offer, and (in the event that Pehin Nawawi did not have that authority) that he is liable both for breach of warranty of authority, and also for the tort of negligent misstatement.

36 McDougall J has ordered that the proceedings be stayed permanently: Garsec v His Majesty The Sultan of Brunei [2007] NSWSC 882; (2007) 213 FLR 331. This is an application for leave to appeal from that decision of McDougall J. It was argued on the basis that in the course of the application for leave to appeal each party put all arguments on which he or it would wish to place reliance if leave were to be granted.

37 Both Opponents filed a Notice of Appearance in the proceedings. One aspect of the application they made to McDougall J was for leave to withdraw their Notices of Appearance, on the ground that the Notices of Appearance had been filed at a time when the Claimant’s case asserted a connection with New South Wales that the Claimant’s case as ultimately formulated, did not assert. McDougall J refused leave to withdraw the Notices of Appearance. There is no application for leave to appeal against that refusal.

38 When both Opponents have appeared, the Supreme Court clearly has jurisdiction to deal with the case alleged against them. The effect of the stay granted by McDougall J is that, notwithstanding that it has jurisdiction over the dispute, the Court declines to exercise that jurisdiction.

39 Quite independently of any particular rules of court, courts have on occasions declined to exercise jurisdiction vested in them. A circumstance in which a question has commonly arisen of whether a court should decline to exercise jurisdiction is when proceedings are brought in the court against a foreign defendant, and the foreign defendant alleges that the dispute should be tried in some foreign court, rather than in the local court. It has been in that context that principles have developed about the circumstances in which the local court should, or should not, decline to exercise jurisdiction.

40 Principles governing that topic that were developed in 19th-century England were encapsulated by Scott LJ in St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382, at 398:

(a)

(b)

41 The principle in St Pierre came to be questioned in the House of Lords in The "Atlantic Star" [1974] AC 436; MacShannon v Rockware Glass Ltd [1978] AC 795; Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 and Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460. In summary, the English position came to be that a court should stay litigation against a foreign defendant if the English court was not the appropriate forum for the resolution of the dispute.

42 In Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 a majority of the High Court (Brennan, Deane and Gaudron JJ, Wilson and Toohey JJ dissenting) adhered to the principle stated in St Pierre, but differed in their explanation of what that principle meant. Given its adoption by later authority, is appropriate to set out the explanation given by Deane J. At [6]-[7]; 247-248 his Honour said that the words “oppressive” and “vexatious” as used by Scott LJ in St Pierre:

"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 ... ".

The "Atlantic Star",

MacShannon

St. Pierre

Cope Allman

the exercise ... of ... jurisdiction would be vexatious to the defendants or would result in any real injustice to them

Maritime Insurance Co

oppressive

vexatious

oppressive

vexatious

Spiliada Maritime Corp v Cansulex Ltd

vexatious

oppressive

inappropriate forum

more appropriate forum

43 Voth v Manildra Flour Mills Proprietary Ltd [1990] HCA 55; (1990) 171 CLR 538 established that the test in Australian law by reference to which a court should decide whether to stay proceedings that had been commenced in it was whether the court was a “clearly inappropriate forum”; the test was not whether there was a more appropriate forum somewhere else. The joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ at [30]; 554 identified four principles that were common ground to the majority in Oceanic Sun:

“with great care”

“extreme caution”.

44 Concerning the first of those principles, the majority also recognised at [54]; 566 that in some cases too much weight may have been given to “the notion that a proceeding regularly invoked provides a prima facie right to have the proceeding continue in that forum”. (The majority in Henry v Henry [1996] HCA 51 at [28]; (1996) 185 CLR 571 at 589 also drew attention to that passage.) Further, the majority in Voth stated, at [40]; 559, the circumstances in which that prima facie right did not arise:

Oceanic Sun

45 Concerning the second of those principles, the joint judgment in Voth identified the substantial differences of approach between Brennan J on the one hand, and Deane and Gaudron JJ on the other in Oceanic Sun as either being, or arising from, differences of view about the shade of meaning to be attributed to “oppressive” and “vexatious”. They said, at [31]; 555, that Deane J in Oceanic Sun said that:

oppressive

vexatious

46 The joint judgment reached the conclusion, at [51]; 564-5, that, subject to a question of onus which is not of present relevance:

Oceanic Sun

Spiliada

connecting factors

a legitimate personal or juridical advantage

47 The discussion of Lord Goff that has thus been recognised by the High Court as providing “valuable assistance” for the purpose of identifying connecting factors is, at 477-478:

MacShannon’s

substantially less inconvenience or expense

Société du Gaz

convenience

The Abdin Daver

natural forum

that with which the action had the most real and substantial connection

Crédit Chimique v James Scott Engineering Group Ltd

48 The discussion of Lord Goff that has been recognised by the High Court as providing “valuable assistance” for the purpose of identifying the type of matters that count as a “legitimate personal or juridical advantage” for the application of the principle concerning grant of a stay is, at 482-484:

Treatment of "a legitimate personal or juridical advantage”

Société du Gaz

"I do not see how one can guide oneself profitably by endeavouring to conciliate and promote the interests of both these antagonists, except in that ironical sense, in which one says that it is in the interests of both that the case should be tried in the best way and in the best tribunal, and that the best man should win."

Sim v Robinow

,

“suitably for the interests of all the parties and for the ends of justice.”

But the underlying principle requires that regard must be had to the interests of all the parties and the ends of justice; and these considerations may lead to a different conclusion in other cases. For example, it would not, I think, normally be wrong to allow a plaintiff to keep the benefit of security obtained by commencing proceedings here, while at the same time granting a stay of proceedings in this country to enable the action to proceed in the appropriate forum. … Again, take the example of cases concerned with time bars. Let me consider how the principle of forum non conveniens should be applied in a case in which the plaintiff has started proceedings in England where his claim was not time barred, but there is some other jurisdiction which, in the opinion of the court, is clearly more appropriate for the trial of the action, but where the plaintiff has not commenced proceedings and where his claim is now time barred. Now, to take some extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiff's claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction. Indeed a strong theoretical argument can be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay should generally be granted even though the plaintiff's action would be time barred there. But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings (for example, by issuing a protective writ) in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country. … It is not to be forgotten that, by making its jurisdiction available to the plaintiff – even the discretionary jurisdiction under R.S.C., Ord. 11 - the courts of this country have provided the plaintiff with an opportunity to start proceedings here; accordingly, if justice demands, the court should not deprive the plaintiff of the benefit of having complied with the time bar in this country. Furthermore, as the applicable principles become more clearly established and better known, it will, I suspect, become increasingly difficult for plaintiffs to prove lack of negligence in this respect. The fact that the court has been asked to exercise its discretion under R.S.C., Ord. 11, rather than that the plaintiff has served proceedings upon the defendant in this country as of right, is, I consider, only relevant to consideration of the plaintiff's conduct in failing to save the time bar in the other relevant alternative jurisdiction. The appropriate order, where the application of the time bar in the foreign jurisdiction is dependent upon its invocation by the defendant, may well be to make it a condition of the grant of a stay, or the exercise of discretion against giving leave to serve out of the jurisdiction, that the defendant should waive the time bar in the foreign jurisdiction; this is apparently the practice in the United States of America.”

49 The power to stay proceedings on grounds of clearly inappropriate forum has been held to be an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice: CSR Limited v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345 at 391.

50 A further source of the power of the Court to stay proceedings is section 67 Civil Procedure Act 2005:

“Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.”

51 The following provisions of the Uniform Civil Procedure Rules are relevant to an application for stay of proceedings served outside Australia:

(1) The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia.

(2) Without limiting subrule (1), the Supreme Court may make an order under this rule:

(a) on the ground that the service of the originating process is not authorised by these rules, or

(b) on the ground that the court is an inappropriate forum for the trial of the proceedings.

…

12.11 Setting aside originating process etc

(1) In any proceedings, the court may make any of the following orders on the application of a defendant:

(h) an order declining to exercise jurisdiction in the proceedings.

…”

52 Apart from insertion of the express reference to the Supreme Court in UCPR 11.7, and some purely stylistic changes, those rules are identical to Part 10 r 6A and Part 11 r 8 Supreme Court Rules 1970, introduced in 1988.

53 UCPR 12.11(1)(h) appears in a Part of UCPR entitled “Discontinuance, Withdrawal, Dismissal and Setting Aside of Originating Process”, that deals in a perfectly general way with the topics identified in the title of the Part. In terms, UCPR 12.11(1)(h) applies to all proceedings whatever, regardless of whether they have been served in Australia, or served outside Australia or never served. When UCPR 11.7 makes specific provision that the Supreme Court may make an order of a kind referred to in rule 12.11 on application by a defendant on whom originating process is served outside Australia, it is not, it seems to me, making any provision that extends the scope of the types of actions to which UCPR 12.11 would have applied in its own terms. That is of some significance in the present case, as Pehin Nawawi has not been served outside Australia (or indeed at all), and so does not come within the literal terms of the UCPR 11.7.

54 UCPR 11.7(2)(b) identifies one of the grounds on which the Court can stay proceedings as being that “the court is an inappropriate forum for the trial of the proceedings”. Purely as a matter of construction of the rule, it does not seem to me that that statement of the grounds operates as a limitation on the generality of the power of the Court under UCPR 12.11(1)(h) to decline to exercise jurisdiction in the proceedings. That is because, while UCPR 11.7(2) sets out some of the grounds on which an order can be made under UCPR 11.7, it explicitly states that it is not limiting the power of the court to make such an order.

55 In Pendal Nominees Pty Ltd v M & A Investments Pty Ltd (1989) 18 NSWLR 383 Rogers CJ Comm D pointed out at 395 that the 1988 amendments to the New South Wales rules concerning “long arm” jurisdiction were made prior to the decision of the High Court in Oceanic Sun. (The rules were gazetted on 17 June 1988, and the decision in Oceanic Sun was delivered on 30 June 1988.) Rogers CJ Comm D expressed the view at 396-7 that it was “the philosophy which informs Lord Goff's Speech in Spiliada that the new r 6A attempted to capture”. He foreshadowed that:

Oceanic Sun

56 That view was rejected in the joint judgment of Spigelman CJ, Mason P and Stein JA in Hyde v Agar (1998) 45 NSWLR 487 at 510:

Voth

Spiliada

Pendal Nominees Pty Ltd v M & A Investments Pty Ltd

57 In James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 the Court of Appeal applied the “clearly inappropriate forum” tests to an application for stay of proceedings, but (as Spigelman CJ recorded at 28) no argument was put that the introduction of Part 10 rule 6A(2)(b) of the Supreme Court Rules made any difference to the common law principles that the High Court had laid down in Voth.

58 The decision of the Court of Appeal in Hyde v Agar was reversed on appeal (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552), principally on the ground that a duty of care that the Court of Appeal had thought arguable was held by the High Court not to be arguable. The majority judgment of Gaudron, McHugh, Gummow and Hayne JJ at [55], expressly declined to enter into the question of whether the Rules prescribed a different test for determining questions of inappropriate forum from that developed at common law (which, by the time the decision in Agar v Hyde was given, meant the principles adopted in Voth.)

59 Any uncertainty that that might have left about the status as a precedent of the Court of Appeal decision in Hyde v Agar in so far as it related to the construction of Part 10 rule 6A was removed in the majority judgment of the High Court in Regie Nationale des Usines Renault v Zhang [2002] HCA 10; (2002) 210 CLR 491 at [25]:

Voth

60 Thus it is clear that the power that is given by the rules is exercised on the same principles as the common law concerning stay of proceedings brought against a foreign defendant, notwithstanding that it uses the expression “inappropriate forum” instead of “clearly inappropriate forum”:

61 The only evidence concerning the effect of the law of Brunei on the facts alleged by the Claimant was given by a Brunei lawyer, Mr Chiew.

62 He explained that Brunei was, until 1984, a British protectorate. Section 2 of its Application of Law Act 1951 shows how the law of Brunei has its origin in English law:

“Subject to the provisions of this Act and save in so far as other provision has been or may hereafter be made by any written law in force in Brunei, the common law of England and the doctrines of equity, together with statutes of general application, as administered or in force in England at the commencement of this Act, shall be in force in Brunei:

Provided that the said common law, doctrines of equity and statutes of general application shall be in force in Brunei so far only as the circumstances of Brunei and of its inhabitants permit and subject to such qualifications as local circumstances and customs render necessary.”

Provisions of the Brunei Constitution

63 On 29 September 1959 two relevant documents were proclaimed as Brunei law – the Constitution, and the Succession and Regency Proclamation (“the Proclamation”). Both of those documents were amended in 2004. In the form it had after the 2004 amendment, Article 4 of the Constitution provided for the Sultan to be Prime Minister, Supreme Commander of the Armed Forces, and the person in whom was vested, and who exercised, the supreme executive authority of Brunei.

64 The Constitution also stated:

“84B (1) His Majesty the Sultan and Yang Di-Pertuan can do no wrong in either his personal or any official capacity. His Majesty the Sultan and Yang Di-Pertuan shall not be liable to any proceedings whatsoever in any court in respect of anything done or omitted to have been done by him during or after his reign in either his personal or any official capacity.

(2) Any person acting on behalf, or under the authority, of His Majesty the Sultan and Yang Di-Pertuan shall not be liable to any proceedings whatsoever in any court in respect of anything done or omitted to have been done by him in his official capacity:

Provided that, subject to Article 84C, provision may be made by written law for the bringing of proceedings against the Government or any officer, servant or agent thereof, but not His Majesty the Sultan and Yang Di-Pertuan, in respect of wrongs committed in the course of carrying on the government of Brunei Darussalam.

…

86 (1) His Majesty the Sultan and Yang Di-Pertuan may refer any question involving, arising from, relating to, or in connection with, the meaning, interpretation, purpose, construction, ambit or effect of any of the provisions of this Constitution to the Interpretation Tribunal established in accordance with Clause (7) for its determination.

(2) When any such question arises in any legal proceedings before any court, His Majesty the Sultan and Yang Di-Pertuan may direct that court to refer such question to the Interpretation Tribunal or that court shall refer such question to His Majesty the Sultan and Yang Di-Pertuan, with a submission that His Majesty the Sultan and Yang Di-Pertuan should refer that question to the Interpretation Tribunal, and upon receiving such reference His Majesty the Sultan and Yang Di-Pertuan may refer such question to the Interpretation Tribunal:

Provided that the court shall not refer such question which has already been decided by the Interpretation Tribunal.

(3) If His Majesty the Sultan and Yang Di-Pertuan does not refer such question to the Interpretation Tribunal, he shall cause the court by whom the reference thereof was made to be so informed, and the court shall thereupon proceed with the determination of the legal proceedings before it.”

65 The Proclamation, after the 2004 amendments, also contained a provision stating:

“25.(1) The following principles shall be inherent in the exercise of the State functions –

…

(b) His Majesty the Sultan and Yang Di-Pertuan can do no wrong in either his personal or any official capacity:

Provided that provision may be made by laws enacted under the Constitution for the bringing of proceedings against the Government or any officer, servant or agent thereof, but not His Majesty the Sultan and Yang Di-Pertuan, in respect of wrongs committed in the course of carrying on the government of Brunei Darussalam.”

66 Clause 32 of the Proclamation was in identical terms to Article 86 of the Constitution, save only for changes necessary to accommodate the fact that the Interpretation Tribunal was already in existence, and that it was questions involving the Proclamation that could be referred to the Interpretation Tribunal.

67 It is common ground that there has been no provision made of the type referred to in the provisos to Article 84B(2) of the Constitution and Clause 25(1)(b) of the Proclamation.

68 Mr Chiew gave evidence that under Brunei law Article 84B(1) of the Constitution declares two distinct prerogatives – that His Majesty “can do no wrong” and that His Majesty “is immune from legal proceedings in court”. He expressed the view that under both the Constitution and the Proclamation, the provision that the Sultan “can do no wrong” meant that the Sultan’s position “would be the same as the position of the Crown/Sovereign in England immediately prior to the coming into force of the Crown Proceedings Act 1947 in England”. However, a relevant difference from the Crown’s position in England before 1947 was that the petition of right was not available in Brunei. He stated there was no statute in Brunei equivalent to the Crown Proceedings Act 1947 in England. He recognised that in England before the Crown Proceedings Act it was possible for the Crown to contract with a subject, but that the only remedy a subject had against the Crown if the Crown were to breach the contract was by petition of right. He expressed the view that, by virtue of the amendments that were made to the Proclamation in 2004, the petition of right that was available under the pre-1947 common law was not now available in Brunei. He was unaware of any proceedings by way of petition of right ever having been brought in Brunei.

69 He also stated that under the law of Brunei, there is no mechanism for the issuing of any writ or summons against the Sultan, and none for the enforcement of any judgment against him.

70 In a supplementary report Mr Chiew explained the precise alterations that had been made to the Proclamation, and the Constitution, in 2004. Article 84B of the Constitution was entirely new in 2004. A provision of the previous version of the Proclamation whereby effect was to be given to the principle that the Sultan can do no wrong “in like manner as, immediately before the enactment of the Crown Proceedings Act 1947 in England, effect was there given to the maxim that the King can do no wrong” was amended in 2004, deleting the words I have just quoted, and adding the words “in either his personal or any official capacity”. He recognised that before the 2004 amendments, there might arguably have been two means by which proceedings alleging breach of contract could be brought against the Sultan, namely:

“(i) by a petition of right, perhaps under the common law of England (since the statute of Petition of Right, 1860, was repealed by the Crown Proceedings Act, 1947) for breach of contracts; and

(ii) by provisions made under the proviso to section 25(1)(b) of the Old Proclamation, although none was enacted for this purpose.”

71 However, in his opinion after the 2004 amendments the possibility of proceedings by petition of right was removed. He supported that conclusion by reference to the Brunei statute dealing with extrinsic aids to interpretation (a provision bearing a strong family resemblance to sections 15AA and 15AB Acts Interpretation Act 1901 (Cth)), and by reference to the speech in the Legislative Council of the relevant Minister.

72 According to Mr Chiew, in consequence of the 2004 amendments, the Sultan was not liable, “whether theoretically or otherwise” for breach of contract. That immunity from suit existed as a matter of substantive law in Brunei. The substantive immunity derived not from the principle that the Sultan can do no wrong, but from the second sentence of Article 84B(1) of the Constitution.

73 Mr Chiew recognised that whether Pehin Nawawi had immunity under the Constitution would depend upon whether he was acting under the authority or on behalf of the Sultan, and in his official capacity. Mr Chiew was unable to express a view on whether those preconditions for the existence of the immunity under Article 84B(2) of the Constitution were established.

Criminal Conduct Under Brunei Law?

74 Pursuant to a pre-trial direction, the Claimant filed affidavits setting out the basis of its claims against the defendants. Those affidavits were tendered by the Opponents, on the basis that they were not evidence of the truth of the matters alleged, but demonstrated the case that the Claimant sought to make.

75 One affidavit was from Mr Michael McGurk, a director of the Claimant. The other was from Mr Rosihan, an Indonesian resident who was present at some of the meetings from which the alleged agreement arose. Neither the Sultan nor Pehin Nawawi was alleged to have been present at any such meeting. As the claim was ultimately formulated the contract with the Sultan was alleged to arise through the intermediary of a Mr Chai, who was said to be a close connection of Pehin Nawawi.

76 The affidavit of Mr McGurk deposed to his first meeting Mr Chai on the evening of 2 April 2005 in Brunei. Mr McGurk deposed to having told Mr Chai about having the Manuscript available for sale, that Mr Othman (another person present at the meeting) expressed the view that his Majesty would be interested in it, and that Mr Chai asked for information about the Manuscript so that he could show it to his “Godfather” Pehin Nawawi. Mr Chai stated that Pehin Nawawi had asked him to look out for items such as this Manuscript.

77 Mr McGurk deposed to another meeting on 3 April 2005 with Mr Chai and Mr Othman, in which Mr McGurk mentioned the possible sale of the Manuscript for US$8m. In response to a question from Mr Chai about how much “we” would get if the sale happened, Mr McGurk said 10% would go to an appropriate Muslim charity, “with the balance split three ways, one third to you and your associates, one third to my company and one third to my associates.”

78 On 27 April 2005, according to Mr McGurk, Mr Chai told him in a telephone conversation that Pehin Nawawi had told him that he had discussed the price of US$8m with His Majesty and that His Majesty had agreed. In response to Mr Chai’s question, Mr McGurk confirmed that the agreement as to the split of the sale proceeds still stood.

79 Mr McGurk’s affidavit deposes to that agreement being varied on 29 November 2005 in Brunei, when a Mr Poh stated that Nawawi did not agree to the 10% going to charity. McGurk told Poh

“OK, in relation to the charity money, you can have $600k to do with as you wish. We will do what we wish [with] the other $200k, including a charitable donation if we decide to.”

80 Mr Rosihan gave evidence to similar effect to that of Mr McGurk concerning the split of proceeds that was proposed by Mr McGurk in April 2005, and concerning Mr McGurk’s confirmation of the proposed split of proceeds in Brunei on 28 November 2005. Mr Rosihan’s evidence about the variation agreed between Poh and McGurk later that day differs in detail from McGurk, in that he said that the proposal that Poh purported to relay from Nawawi was “Nawawi does not agree to 10% going to charity. He wants $400,000 to go to him. With the rest, Chai gets $200,000 and you get $200,000.” According to Mr Rosihan, Mr McGurk agreed to that proposal.

81 Mr Chiew gave evidence that these affidavits disclosed the commission of offences under section 6 of the Prevention of Corruption Act, and section 120A of the Penal Code of Brunei. He expressed the view that in consequence, the consideration for or object of the alleged contract for sale of the Manuscript would be held by the Court in Brunei to be unlawful and void. As well, he expressed the view that section 168 of the Contracts Act of Brunei (which dealt, broadly, with the rights of a principal concerning contracts where the agent has dealt on his own account and dishonestly concealed facts from the principal) would provide a further defence to the Sultan, entitling him to avoid the contract.

82 In Mr Chiew’s opinion, under Brunei law any contract whereby Pehin Nawawi warranted his authority to act for the Sultan concerning this transaction would be illegal and void for the same reasons as the alleged contract with the Sultan was illegal and void.

83 The primary judge made a finding that if a contract was made as alleged by the Claimant, the proper law of that contract was the law of Brunei. He also found, concerning the claim in tort against Pehin Nawawi, that the claim was governed by the law of Brunei because Brunei was the place where the acts alleged to constitute the wrong occurred. No appeal is sought to be brought from either of those findings.

84 His Honour made no express finding about the law that governed the alleged contract whereby Pehin Nawawi warranted that he had authority. However, no submission was made on the application for leave to appeal to the effect that the failure to make that finding was of any significance, and in light of his Honour’s other findings and the facts alleged by the Claimant, it is hard to see how the proper law of that alleged contract would be anything other than the law of Brunei.

85 One strand of reasoning in the judgment below related to the effect of the constitutional immunities available to the Sultan, and perhaps to Pehin Nawawi, under the law of Brunei. The Claimant submitted that the effect of those immunities in the courts of Brunei demonstrated that the Claimant had a legitimate juridical advantage, of which it should not be deprived, in bringing the proceedings in the Supreme Court of New South Wales.

86 The trial judge did not accept that submission. He concluded that any immunities that the Sultan and Pehin Nawawi had under the Brunei law would be applied by the New South Wales court, and hence there would be no juridical advantage, whether legitimate or otherwise, for the Claimant in bringing the proceedings in New South Wales. The reason why the New South Wales courts would apply the immunities available to the defendants under the law of Brunei was because the choice of law rules of the Australian common law regarded those immunities as part of the substantive law governing each of the causes of action alleged, and hence Australian choice of law rules would require those immunities to be applied even if the action were brought in New South Wales.

87 The trial judge also considered what the situation would be if he were wrong in taking the view that the immunities under Brunei law would be applied in New South Wales by virtue of being substantive. In that situation, he reasoned, the proceedings had been brought in Australia to prevent the defendants from enjoying defences available in Brunei and not available in Australia. In that situation, he reasoned, depriving the defendants of an available defence would be oppressive to them in the Voth sense.

88 A related argument put by the Claimant was that (apparently assuming against itself that Pehin Nawawi would be immune from suit in Brunei) a very powerful factor, if not a compelling factor, for the court to take into account in deciding whether the New South Wales proceedings were vexatious, oppressive or an abuse of process in the Voth sense was that the proceedings were maintainable in New South Wales and in no other forum. His Honour did not accept that this was a compelling factor.

89 The trial judge found it unnecessary to deal with an attack that was made on Mr Chiew’s evidence in cross-examination, insofar as Mr Chiew had expressed the opinion that that immunity under the law of Brunei was a matter of substance, not a matter of procedure. His Honour took the view that that was unnecessary to decide because, in accordance with the decision in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 under the Australian law concerning choice of law questions of whether a provision of foreign law was substantive or procedural were to be decided in accordance with the Australian law.

90 The Claimant submitted that another legitimate juridical advantage that it had in bringing the proceedings in New South Wales was that proceedings brought in Brunei might fail because of the illegalities to which Mr Chiew deposed. The trial judge rejected that argument, for two reasons. One was that any illegality under Brunei law would be regarded, in accordance with the principles of Australian choice of law, as part of the substantive law of Brunei, and thus applied to all the causes of action alleged, so that the only benefit to the Claimant of suing in New South Wales would be a diminution in the risk of prosecution. His Honour also said (at [109]):

“If Garsec chose to contract in Brunei on a basis that it is illegal under Bruneian law, it should not be permitted to escape the consequences by bringing proceedings in this Court.”

91 That remark, I take it, involves a rejection of the legitimacy of any advantage the Claimant might have by suing in New South Wales, arising from the risk of prosecution in Brunei being lessened.

92 His Honour then went on to consider in detail the expense and inconvenience that would arise for those involved in the litigation if it were held in Sydney on the one hand, or in Brunei on the other. He noted that Mr Chiew’s evidence showed that Brunei’s legal system was modelled on the English system, and had well-defined principles. He noted there was no suggestion that the legal system in Brunei was oppressive, unfair or capricious. He evaluated the connections of the transaction with Brunei, and with New South Wales. Having rejected the validity of the specific “legitimate juridical advantages” that the Claimant submitted it would have in suing in New South Wales, his Honour concluded that the Supreme Court of New South Wales was a clearly inappropriate forum.

93 In the passage from the judgment of Deane J in Oceanic Sun at [6]-[7]; 247-248 that I have set out at para [42] above the discretionary nature of the power to stay proceedings on inappropriate forum grounds was recognised. In Voth at [53]; 565 the majority judgment said that in both applications to set aside service, and in applications for a stay on inappropriate forum grounds:

Spiliada

forum non conveniens

94 Notwithstanding the truth of the observation of Giles CJ Comm D in News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 258 that, “Regrettably, the position envisaged in Voth v Manildra Flour Mills Pty Ltd is not often achieved”, the essential nature of the task of a judge in deciding whether to grant a stay on inappropriate forum grounds remains the formation of a discretionary judgment based on weighing factors presented by the instant case. Thus, as the majority in Voth remarked at [66]; 570:

“… the question is preeminently one for the trial judge, an appeal should be rare and an appellate court should be slow to intervene.”

95 No doubt in recognition of the limited grounds upon which appellate intervention in such a decision is justified, the Claimant’s argument sought to identify an error of principle in the judgment below. If there had been an error of principle that was material to the conclusion reached, that would then have justified this Court in reaching its own view about whether the factors present in the instant case showed that New South Wales was a clearly inappropriate forum.

96 On the application for leave to appeal, the Claimant identified the issues that would arise in an appeal as follows:

“(a) whether the immunity conferred on the Sultan under Article 84B of the Constitution of Brunei is, in a conflictual sense, procedural rather than substantive in character;

(b) whether, notwithstanding the ordinary principles governing the characterisation of substantive and procedural rules for conflictual purposes, the immunity conferred on the Sultan by the Constitution of Brunei is an immunity which has no relevant application outside the Courts of Brunei, having regard to the history and the underlying rationale of the immunity;

(c) whether the unavailability of any alternate forum for the bringing of the proceedings by Garsec against the Sultan was a decisive consideration against a finding that New South Wales was a clearly inappropriate forum; and

(d) whether the substantive proceedings were likely to require the interpretation of a foreign constitution, such that this should be a factor weighing against the continuation of the proceedings.”

97 Another issue also developed, concerning whether it was vexatious or oppressive to bring proceedings in New South Wales for the purpose of depriving the defendant of a defence the defendant would have if sued elsewhere.

98 In John Pfeiffer the High Court considered the choice of law rule that should be applied when an action seeking damages in tort was brought in one Australian State or Territory concerning a tort that had been committed in a different State or Territory. The joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ held that the appropriate choice of law rule was that the law of the place of commission of the tort should be applied. Their Honours noted at [97], that the majority in McKain v RW Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 at [17]; 40 had recognised that a distinction was traditionally drawn between substantive law and procedural law. This was said in a context that recognised that it was only the substantive law of a different jurisdiction, not its procedural law, that choice of law rules required to be applied to a tort governed by the law of that different jurisdiction. The majority in John Pfeiffer accepted the traditional distinction between matters of substance being decided in accordance with the governing law and matters of procedure being decided in accordance with the law of the forum, but redrew where the dividing line lay between matters of substance and matters of procedure. The majority said, at [99]-[100] that:

McKain

Stevens v Head

lex loci delicti

all

lex loci delicti

99 In Zhang, a joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ applied to international torts the same choice of law rule as had been adopted in John Pfeiffer for intra-Australian torts. At [76] their Honours noted the statement in Pfeiffer at [100] that

all

100 Their Honours said, concerning that statement:

British South Africa Co v Companhia de Moçambique

Potter v Broken Hill Pty Co Ltd

“aerial”

Dicey and Morris on The Conflict of Laws

129 The considerations to which Mr Hutley points in arguing that the Sultan’s immunity from suit in an action of contract is purely procedural, arising from the lack of any machinery in the Brunei court whereby the Sultan could be sued, may well, in accordance with Mr Chiew’s evidence, have been correct prior to the 2004 amendments. The provision that the Sultan “can do no wrong” does not, on Mr Chiew’s evidence (and as confirmed by the history of the corresponding doctrine in England) suffice to exclude the Sultan from having a liability for breach of contract. As the English position showed, it was possible for a subject to contract with the Sovereign, and possible for the Sovereign to breach that contract, and it was merely a matter of procedure how the subject could go about obtaining a remedy by reason of that breach of contract.

130 However it is not necessary to reach a view about how the Sultan’s liability for breach of contract stood before the 2004 amendments, because the 2004 introduction of Article 84B(1) made a crucial difference. The provision that the Sultan “shall not be liable to any proceedings whatsoever in any court”, when characterised in accordance with Australian choice of law rules is more than a rule directed to governing or regulating the mode or conduct of court proceedings. The John Pfeiffer test draws a distinction between a person having a right or duty, and the manner in which the person who has the right goes about enforcing that right in court against the person who owes the duty. A law whereby no duty is owed is substantive law. Similarly, a law whereby a person has no liability is substantive law. It does more than govern or regulate the mode or conduct of court proceedings – it stipulates the inevitable outcome of them.

131 Mr Chiew accepted in cross-examination that the reference to “in any court” in Article 84B would be construed as “in any court of Brunei”, not any court outside Brunei. That does not mean, however, that the immunity it creates has an effect only in Brunei. The Australian choice of law rules require an Australian court, when hearing an action for alleged breach of contract governed by Brunei law, to seek to achieve the same outcome as a Brunei court would achieve. If there is no liability of the Sultan under Brunei law so that the outcome of an action for breach of contract in Brunei would be that it failed, because of a provision of Brunei law that was not merely one that governed or regulated the mode or conduct of court proceedings, that is the same result as the Australian court should achieve.

132 I do not accept that the words of caution used in John Pfeiffer in stating the dividing line between procedure and substance for the purpose of choice of law have the effect that the immunity is not classified as substantive. That is because classifying the immunity as substantive achieves the objectives that the High Court has identified as the objectives that are to be achieved by the procedural/substantive distinction.

133 Mr Hutley also submitted that the Sultan's immunity was shown to be procedural because, even if the Sultan had entered a contract with X in London, and X could have sued the Sultan in the English courts for breach of that contract, any attempt by X to sue on that contract in the courts of Brunei would fail.

134 I do not accept that that example shows that, in the present case, the Sultan’s immunity should be classed as procedural for the purpose of Australian choice of law rules. If it were the case that the contract entered in London was governed by English law, and (assuming for the sake of the argument that the choice of law rules of Brunei were the same as those of Australia), the aim of the Brunei courts, so far as applying the proper law of the contract was concerned, would be to achieve the same result as the English courts would achieve – ie that the contract was enforceable. But the proper law of the contract, and any laws of Brunei about the mode of conducting court proceedings, are not necessarily the only law that the Brunei courts would be obliged to apply. If there were a Brunei statute that prohibited as a criminal offence the bringing of any action against the Sultan in Brunei, that statute would also need to be obeyed by the Brunei courts. It would have the effect that the bringing of the action in Brunei was contrary to Brunei public policy, and so the action would fail.

135 But that does not mean that it is thereby a procedural law for the purpose of Australian choice of law rules. If X were instead to sue the Sultan in Australia on the English contract, the aim of the Australian courts would be to achieve the same result as the English courts would have achieved. The Brunei statute would be simply irrelevant to the Australian courts in that situation, so there would be no need to categorise it as either substantive or procedural for Australian choice of law purposes. It well may be that the statute creating the criminal offence and the general law whereby courts do not give their aid to a breach of the criminal law, would both be regarded as substantive in the law of Brunei. But that has nothing to do with whether a law is substantive or procedural for the purpose of Australian choice of law rules.

136 In my view, the same situation applies concerning the Sultan’s immunity from suit in Brunei.

137 In the court below, the Claimant had submitted that the unavailability of an alternative forum was an extremely powerful factor that amounted to a “legitimate juridical advantage” of which the Claimant should not be deprived. The trial judge’s reasoning did not accept that it was a factor that was “dispositive”, as the Claimant had alleged. He gave extended reasons for reaching that conclusion, at [126]-[129]:

Voth

“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.”

Garsec submitted … "that the majority had in mind a situation in which there was an alternative, non judicial system in place in a foreign jurisdiction for providing the plaintiff with a remedy in respect of the loss or damage that is the substance of the proceedings".

I do not think that the proposition should be read down in this way. To do so would in effect require attention to be given not to the suitability of the forum (which is what is involved in the "clearly inappropriate forum" test) but to the suitability of the competing forum (which is what is what is involved in the "clearly more appropriate forum" test, rejected by their Honours).

The second reason for rejecting the submission relates to the assumption on which it is founded. I have concluded that the immunities given by Art 84B of The Constitution of Brunei are substantive and not procedural. I have also concluded that the law of Brunei is the proper law of the alleged contract and the law applicable to the alleged tort. Thus, if the proceedings were heard in this Court, the substantive law of Brunei including those immunities (to the extent that they might be found to be applicable) would be applied. On that basis, the legitimate juridical advantage for which Garsec contends would disappear. On the other hand, if I am wrong, in both assumptions, then this Court might not give the Sultan the benefit of the immunities. For the reasons that I have given in para [73] above, that in itself would be oppressive. In other words, the counterpart of Garsec's legitimate juridical advantage is an equivalent juridical disadvantage to the Sultan and Pehin Nawawi. In those circumstances, I do not think that the alleged legitimate juridical advantage should be regarded as dispositive.”

138 On the appeal Mr Hutley recognised that the trial judge referred to the Claimant’s submission concerning the absence of an alternative forum being a powerful consideration, but submitted the judge “did not give the submission any weight”.

139 Mr Hutley pointed to the remark of Deane J in Oceanic Sun at [6]-[7]; 247-8 (quoted at [42] above) that referred to the onus that lies upon a defendant seeking a stay on inappropriate forum grounds, and that Deane J had continued:

“Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff.”

140 Mr Hutley also pointed to a statement of Lord Goff in Spiliada at 482 where, after recognising that the forum might provide advantages like damages being awarded on a higher scale, a more complete procedure of discovery, a power to award interest, or a more generous limitation period, his Lordship continued:

“… as a general rule, I do not think that the court should be deterred from granting a stay of proceedings … simply because the plaintiff will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the available appropriate forum.”

141 I agree with the trial judge that the example given by the majority in Voth, in the passage at [37]; 558-9 that the trial judge quoted, of a circumstance where the local court could be clearly inappropriate notwithstanding that there was no other tribunal that was competent to entertain the proceedings is merely an example, and not a limitation on the circumstances in which the Australian court was a clearly inappropriate forum even if there was no alternative foreign forum. If the subject matter of a dispute had a tenuous connection with Australia such that an Australian court would have jurisdiction concerning it, but all the witnesses and documents were in another country and the transaction was governed by the law of that other country it would be easy to reach a conclusion that the Australian court was a clearly inappropriate forum, regardless of whether there was another place that could hear the dispute.

142 Since Voth, it has been clear that the provisions concerning limitation of action are regarded as substantive for the purpose of Australian choice of law rules. That has the effect that if action is brought in an Australian court concerning a foreign tort or a contract governed by foreign law at a time when an Australian limitation period would not have expired had an action been brought in relation to a cause of action arising here, but the limitation period under the relevant foreign law has expired, the Australian court will nonetheless apply the foreign limitation provision, and hold that the action brought in Australia is likewise statute barred. If that happens, there is no advantage in bringing the proceedings in Australia rather than in the foreign jurisdiction, because wherever they are brought they will fail. Similarly in the present case, it was open to the judge to take the view that there was no advantage for the Claimant in bringing the proceedings in Australia, because on the evidence they would fail against the Sultan whether brought in Australia or Brunei, and the claim of immunity of Pehin Nawawi would be as successful, or unsuccessful, whether the action was brought in Australia or Brunei.

143 There is room to doubt whether Deane J’s view that unavailability of an alternative forum in which the proceedings can be brought is “ordinarily” a knockout point remains good. As explained elsewhere in these reasons, the change in the test for the substantive/procedural distinction has considerably narrowed the field in which an action could successfully be brought in Australia but not in the country whose law governs the dispute. However, it would be wrong for a judge of this Court to reject a view advanced in a High Court judgment that a High Court majority has endorsed, and I shall not do so.

144 In considering the significance of the possible availability of any relief at all in any other forum, it is of some significance that the English test, for the grant of a stay as stated by Lord Goff in Spiliada at 476 is:

"The basic principle is that a stay will only be granted on the grounds of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice."

145 It is that test that has been rejected by the High Court. The Australian test of clearly inappropriate forum focuses on the suitability of the Australian court to hear the dispute. As the generative principle on which the stay is granted was explained by Deane J in Oceanic Sun, a court has a duty to hear disputes that are within its jurisdiction except where continuance of the action would involve conduct that was oppressive or vexatious, in the senses explained by Deane J, sufficiently to amount to an injustice. That test focuses on what would be involved in the continuance of the Australian proceedings. While the effect on the plaintiff of staying the proceedings is a relevant consideration, including whether the plaintiff could effectively litigate the dispute elsewhere, that the plaintiff was unable to get a remedy elsewhere is not necessarily a knockout point. It needs to be evaluated along with the other factors. Deane J was of the view that “ordinarily” it will be a knockout point. But judicial discretions are to be exercised by reference to the facts of the instant case, not by reference to what “ordinarily” happens. Here, the judge took into account, at length, the effect of the difficulties for the Claimant bringing proceedings in Brunei. I see no error in his failing to regard those difficulties as “dispositive” of the stay application.

146 In Voth Toohey J adhered unrepentantly to the views he had expressed in Oceanic Sun, to the effect that the Australian courts should follow Spiliada. At [18]; 587 he pointed out a consequence of the test for a stay favoured by the majority:

“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.”

147 Toohey J is, with respect, right in saying that that is a consequence of the test adopted in Voth for the stay of foreign proceedings on inappropriate forum grounds.

148 A decision still referred to in Ritchie’s Uniform Civil Procedure NSW para [11.7.10] as authority for the proposition that “if a plaintiff cannot pursue an action in a foreign court, the plaintiff should be allowed to maintain the action in the New South Wales court” is Best Australia Ltd v Aquagas Marketing Pty (1988) 83 ALR 217; (1988) 12 IPR 143. Best involved an action brought in the Federal Court of Australia by the holder of an Australian patent against an Australian company and its New Zealand associated company, alleging that both of them had infringed the patent. When the New Zealand company sought a stay on inappropriate forum grounds, Wilcox J recognised that a substantial preponderance of convenience lay in favour of hearing the claim in New Zealand. However, he regarded it as a factor decisive against the grant of a stay, that the applicant could not litigate in a New Zealand court the question of whether the New Zealand company had infringed the Australian patent. No reason was given why that was so, although it may well have been that the principle in Potter v BHP was considered applicable in New Zealand. He concluded, at 224; 150:

Spiliada

149 The decision in Best was given on the basis, now held authoritatively to be incorrect, that Spiliada stated the principles for grant of stay on the basis of inappropriate forum in Australia. The proposition that the patent holder could not litigate in New Zealand the question of whether the New Zealand company had infringed the Australian patent is a question of New Zealand law. It may be that the analogous question of Australian law falls within one of the possible exceptions reserved for further consideration by the High Court in Zhang. It suffices for present purposes to say that Best Australia can no longer be regarded as authority for the proposition for which it is quoted in Ritchie.

“Substantive”

150 The Claimant notes that Mr Chiew gave evidence that the immunities arising under the Constitution were substantive as opposed to procedural in character. It is submitted that

John Pfeiffer

151 I agree that it is irrelevant for present purposes whether Brunei law would regard the immunities as procedural or substantive. The purpose of identifying the immunities as procedural or substantive is to enable application of the Australian choice of law rule whereby it is matters of substance, but not matters of procedure, that are determined in accordance with the place of commission of a tort, and the proper law of a contract. It is in accordance with Australian choice of law rules that the categorisation of a foreign law as being procedural or substantive must be made.

152 Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48 illustrates how this is so. That case considered provisions of the Personal Injuries Proceedings Act 2002 of Queensland, that required a written notice of claim to be served and compulsory conference gone through, before action was brought. It was held that, notwithstanding a provision of the Queensland legislation that stated that those requirements were substantive as opposed to procedural law, for the purpose of choice of law rules the provisions were matters of procedure. In essence, this was because the provisions laid down the mode in which proceedings were required to be brought and did not have the effect that the plaintiff had no rights, or the defendant had no liability, unless the requirements were fulfilled. Therefore the requirements did not need to be complied with when action was brought in New South Wales concerning a tort that had been committed in Queensland.

153 There was no need for his Honour to accept, or to reject, Mr Chiew’s evidence on whether the immunities were substantial or procedural under Brunei law. How they were classified under Brunei law was irrelevant to the judge’s task. He placed no reliance on Mr Chiew’s evidence on that topic. I see no error in how he dealt with that evidence.

154 In Amwano v Parbery [2005] FCA 1804; (2005) 148 FCR 126 Finkelstein J granted a stay of an action brought as a class action on behalf of land owners owning land in the Republic of Nauru who were beneficiaries of the Nauru Phosphate Royalties Trust (Fund No 2). That Fund was established pursuant to a legislative scheme that included the Constitution of Nauru, and some Nauruan statutes. A question was likely to arise about whether the Fund was held on a trust for persons, or a trust for statutory purposes. Answering that question would depend, in part, on interpretation of the Nauruan Constitution. An article of that Constitution provided that the Supreme Court of Nauru had jurisdiction, to the exclusion of any other court, to determine any question arising under or involving the interpretation or effect of any provision of the Constitution. His Honour said at [18]:

“It need hardly be said that this court should only as a last resort, if at all, give meaning and content to the Constitution of a foreign country. I assume a foreign court would adopt the same approach as regards the Constitution of the Commonwealth. It is also undesirable, but not of course to the same extent as in the case of a Constitution, for this court to interpret the statutes of a foreign country. This should only be done if the court cannot avoid the task.”

155 In the present case, McDougall J referred to this passage in Amwano, and continued (at [72]):

“I agree. The position is, perhaps, even stronger in the present case, because of the facility under Article 86 of The Constitution of Brunei for questions involving the interpretation or application of that Constitution to be referred to and decided by the Interpretation Tribunal.”

156 After McDougall J had held that the substantive law of Brunei would govern the claims, he continued (at [107]):

“In circumstances where a resolution of Garsec's claim will require the application of the law of Brunei, and will thus (among other things) require consideration of the immunities afforded by Art 84B of The Constitution of Brunei, it is appropriate for the dispute to be dealt with in the Courts of Brunei. Among other things, to the extent that a resolution of the dispute will involve the interpretation of Art 84B, or will involve the application of Art 84B to whatever facts may be found, that is a task properly to be undertaken by the Courts of Brunei. It is a task that this Court (or, in my view, any foreign court) should be slow to entertain. This proposition is strengthened by the consideration of Art 86 of The Constitution of Brunei. The Interpretation Tribunal has been designated as the body to undertake the resolution of "any question involving, arising from, relating to, or in connection with, the meaning, interpretation, purpose, construction, ambit or effect of any of the provisions of" The Constitution. The issues of immunity under Art 84B fall within the description of issues that may be decided by the Interpretation Tribunal. The Sultan, the State and its citizens are entitled to have constitutional questions decided by the tribunal of their choice and not by a foreign court.”

157 Mr Hutley submitted that, to the extent that the proceedings raised a constitutional issue, it was a threshold issue which could not be avoided. Thus, he submitted, it fell within the exception recognised by Finkelstein J in Amwano, whereby the constitution of a foreign county could be construed by Australian courts if it were necessary to do so.

158 The scope and effect of the immunities available under the Brunei Constitution are a “threshold issue” in the sense that the existence of those immunities is a matter to be taken into account in the application for a stay. While, on the evidence before the judge, at any final hearing (whether in Australia or Brunei) the existence of those immunities would provide the Sultan with a complete defence, and might provide Pehin Nawawi with a defence, it is not clear that in whatever court the final hearing might occur, the existence of the immunities would be decided as a “threshold issue”. Whether it was, or was not, would be a matter for the court conducting the final hearing to decide, concerning the appropriate way of arranging its own business. Further, the view of his Honour about the existence and scope of the immunities was not a final determination – it was one made on the evidence before him, and for the purpose of the stay application only.

159 Mr Hutley also submits that there is no real dispute about the existence or effect of the Constitutional immunities. In my view that is not so in relation to the claim against Pehin Nawawi. Whether Pehin Nawawi has immunity from suit will depend in part upon a question of construction of Article 84B(2) of the Constitution. The question for construction relates to the scope of the expression “any person acting on behalf of, or under authority, of His Majesty …”, and of the expression “anything done or omitted to have been done by him in his official capacity”. It will also turn in part on questions of fact, concerning the precise role and authority that Pehin Nawawi had.

160 Mr Hutley does not dispute that Finkelstein J correctly stated the law in Amwano. I shall assume without deciding that the statement of law is correct, though would observe that, even in those cases where an Australian court “as a last resort” took into account the meaning and content of a foreign constitution, it would do so on the basis of expert evidence. For the reason I have given, however, I do not accept Mr Hutley’s submission that substantive proceedings would involve no question arising under the Constitution of Brunei. The trial judge was not in error in regarding the undesirability of interpreting a foreign constitution as one factor to be taken into account in deciding whether the proceedings should be stayed.

161 In CSR Limited v Cigna Insurance Australia Limited [1997] HCA 33; (1997) 189 CLR 345 the High Court granted a stay of New South Wales proceedings that had been brought by certain insurers against their insured, seeking a declaration that the insurers were not liable under certain policies of insurance. Those New South Wales proceedings were begun when some United States proceedings were already on foot, brought by the insured against the insurers. The United States proceedings alleged that a document that the insured had given the insurers, and that on its face appeared to bear upon the scope of cover, had been procured by conduct in breach of the Sherman Act and its New Jersey counterpart. The United States proceedings included a claim for treble damages under those Acts. Those antitrust claims could not have been brought by the insured in Australian proceedings. A significant part of the reasons of the majority in the High Court for granting the stay was that the central purpose of the insurers in bringing the New South Wales proceedings was to stifle the US proceedings. For that reason the New South Wales proceedings were oppressive in the Voth sense.

162 In the present case, the primary judge took the view that the purpose of the Claimant in bringing proceedings in New South Wales was to prevent the Opponents from enjoying defences available to them in the Brunei courts. In his view, just as it was oppressive in CSR v Cigna for a plaintiff to bring New South Wales proceedings to prevent the defendant in those proceedings from pursuing a remedy available in the foreign court, but not available in Australia, so it could be oppressive in the Voth sense for a plaintiff in New South Wales proceedings to bring those proceedings to prevent the defendant from enjoying a defence available to him in the courts of another country.

163 Mr Hutley submitted that reasoning in this way involved error on the primary judge’s part. He submitted that it is quite common in proceedings involving foreign elements that the plaintiff is seeking to pursue a juridical advantage in bringing proceedings in the local forum rather than the foreign forum, and that there is no general principle to the effect that a plaintiff who brings proceedings in the only available forum is to be criticised for pursuing an illegitimate juridical advantage. He points out that in Voth one of the legitimate juridical advantages relied upon by the plaintiff in bringing proceedings in New South Wales was the avoidance of an effective limitation bar, which would have been available to the defendant in Missouri. He submits that while the defendant in Voth gave an undertaking that it would not rely on the limitation defence if the proceedings were brought in Missouri, there is nothing in the High Court’s reasoning that suggests that, absent the undertaking, the avoidance of that juridical disadvantage was in any way illegitimate or decisive against the plaintiff.

164 In my view there is no error of the type Mr Hutley submits that requires this court to reconsider the stay for itself.

165 A sufficient reason arises from the use that the primary judge made of his view that it would be oppressive in the Voth sense to bring proceedings in New South Wales to prevent the other party from enjoying defences available in the courts of another country and not available in this country. He quite explicitly called that consideration into aid only if he was wrong in his view that the immunities available under Article 84B of the Constitution of Brunei are matters of substance and not procedure. I have already held that the primary judge was right in regarding those immunities as substantive. Thus, even if the primary judge had been wrong in taking the view that bringing proceedings in New South Wales to prevent an opposing party from pursuing remedies available in Brunei but not available in Australia was in itself oppressive, it would not have a material effect on the conclusion reached.

166 Indeed, in light of the account of substantive law given in John Pfeiffer, it is hard to see how a situation could ever arise where a defence was available in the courts of another country, but was not available in this country. The situation that arose in Voth, where the High Court granted the stay on terms of the limitation defence not being relied on in Missouri, will never arise under the choice of law rules laid down in John Pfeiffer.

167 In my view none of the errors alleged by the Claimant are made out.

168 The Claimant’s submissions raised some important matters of principle. I would grant leave to appeal, but dismiss the appeal.

169 The orders I propose are:

1. Leave to appeal granted.

2. Direct Claimant within 14 days of the date of delivery of these reasons for judgment to file, as a Notice of Appeal, the Amended Draft Notice of Appeal already provided to the Court.

3. Appeal dismissed.

**********

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Garsec Pty Ltd v His Majesty The Sultan of Brunei [2008] NSWCA 211

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CITATION:	Garsec v His Majesty The Sultan of Brunei [2008] NSWCA 211
HEARING DATE(S):	2 April 2008
JUDGMENT DATE:	5 September 2008
JUDGMENT OF:	Spigelman CJ at 1; Hodgson JA at 28; Campbell JA at 32
DECISION:	1. Leave to appeal granted. 2. Direct Claimant within 14 days of the date of delivery of these reasons for judgment to file, as a Notice of Appeal, the Amended Draft Notice of Appeal already provided to the Court. 3. Appeal dismissed. 4. Claimant to pay costs of the Opponents of the application for leave to appeal, and of the appeal.
CATCHWORDS:	PRIVATE INTERNATIONAL LAW – Stay of proceedings – Claimant sought order for specific performance of alleged agreement for sale of manuscript copy of Holy Koran – claims in alternative for breach of warranty of authority and negligent misstatement – Opponents filed Notices of Appearance – Choice of law – lower court found proper law of alleged contract and law governing claim in tort was law of Brunei – Art 84B Constitution of Brunei conferred immunity from suit on the Sultan in a personal and official capacity and on persons acting on behalf or under the authority of the Sultan in an official capacity – Court declined to exercise jurisdiction on grounds of clearly inappropriate forum – appeal – source of power of the Court to stay proceedings – power of court to dismiss proceedings which are oppressive, vexatious or an abuse of process – meaning to be attributed to “oppressive” and “vexatious” – relevant connecting factors – legitimate personal or juridical advantage – s 67 Civil Procedure Act 2005 – r 11.7 and r 12.11 Uniform Civil Procedure Rules – Part 10 r 6A and Part 11 r 8 Supreme Court Rules 1970 – whether r 11.7 UCPR imports principles of forum non conveniens as articulated from time to time in Australian law – whether constitutional immunity substantive or procedural for choice of law purposes – relevance of purposes for which distinction between substantive and procedural is made for choice of law purposes – significance of expert evidence as to substantive nature of immunity under law of Brunei – whether history and rationale of immunity is such that it has no relevant application outside the Courts of Brunei – whether unavailability of alternate forum for bringing proceedings was a decisive consideration against a finding of clearly inappropriate forum – whether unavailability of alternative forum amounts to legitimate juridical advantage – whether likelihood that substantive proceedings would require interpretation of a foreign constitution was a factor weighing against continuation of proceedings – legitimacy of bringing the substantive proceedings in New South Wales
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Application of Law Act 1951 (Brunei) Civil Procedure Act 2005 Constitution of Brunei Contracts Act (Brunei) Crown Proceedings Act 1947 (UK) Penal Code (Brunei) Personal Injuries Proceedings Act 2002 (Qld) Prevention of Corruption Act (Brunei) Sherman Act (US) Succession and Regency Proclamation (Brunei) Supreme Court Rules 1970 Uniform Civil Procedure Rules
CATEGORY:	Principal judgment
CASES CITED:	Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Akai Pty Limited v The Peoples Insurance Co Limited [1996] HCA 39; (1996) 188 CLR 418 Amaca Pty Ltd v Frost [2006] NSWCA 173; (2006) 67 NSWLR 635 Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 Amwano v Parbery [2005] FCA 1804; (2005) 148 FCR 126 The "Atlantic Star" [1974] AC 436 Best Australia Ltd v Aquagas Marketing Pty (1988) 83 ALR 217; (1988) 12 IPR 143 Bonython v Commonwealth of Australia [1951] AC 201 The Commonwealth of Australia v Mewett [1997] HCA 29; (1997) 191 CLR 471 CSR Limited v Cigna Insurance Australia Limited [1997] HCA 33; (1997) 189 CLR 345 Feather v R (1865) 6 B & S 257; 122 ER 1191 Garsec v His Majesty The Sultan of Brunei [2007] NSWSC 882; (2007) 213 FLR 331 Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48 Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 Hyde v Agar (1998) 45 NSWLR 487 James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Lube v Cape Plc [2000] 1 WLR 1545 Macbeath v Haldimand (1786) 1 TR 172; 99 ER 1036 MacShannon v Rockware Glass Ltd [1978] AC 795 McKain v RW Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 Pendal Nominees Pty Ltd v M & A Investments Pty Ltd (1989) 18 NSWLR 383 Potter v Broken Hill Pty Co Ltd [1906] HCA 88; (1906) 3 CLR 479 Regie Nationale des Usines Renault v Zhang [2002] HCA 10; (2002) 210 CLR 491 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382 Thomas v the Queen (1874) LR 10 QB 31 Tobin v R (1864) 16 CB (NS) 310; 143 ER 1148 Viscount Canterbury v Attorney General (1843) 12 LJ Ch 281; 41 ER 648 Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277 Voth v Manildra Flour Mills Proprietary Ltd [1990] HCA 55; (1990) 171 CLR 538
TEXTS CITED:	L Collins (ed), Dicey, Morris and Collins on the Conflict of Laws, 14th ed (2006) Sweet & Maxwell WW Cook, Logical and Legal Bases of the Conflict of Laws (1942) Harvard University Press D McClean and K Beavers, Morris: The Conflict of Laws, 6th ed (2005) Sweet & Maxwell PW Hogg and PJ Monaghan, Liability of the Crown, 3rd ed (2000) Carswell
PARTIES:	Garsec Pty Ltd (Appellant) His Majesty Sultan Haji Hassanal Bolkiah Mu'Izzaddin Waddaulah the Sultan and Yang Di-Pertuan of Brunei Darussalam (First Respondent) Pehin Orang Kaya Shad Bandarhj Awang Mohd Nawawi bin Pehin Orang Kaya Shah Bandar Hj Awang Mohd Taha (Second Respondent)
FILE NUMBER(S):	CA 40579/07
COUNSEL:	NC Hutley SC; SJ Free (Appellant) JT Gleeson SC; SA Kerr (Respondents)
SOLICITORS:	Swaab Attorneys, Sydney (Appellant) Clayton Utz (Respondents)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	50183/06
LOWER COURT JUDICIAL OFFICER:	McDougall J
LOWER COURT DATE OF DECISION:	15 August 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Garsec v His Majesty The Sultan of Brunei [2007] NSWSC 882