Practice—Action—Stay—Cause of action arising out of jurisdiction—Greek island cruise booked in New South Wales—Ticket not given to passenger until commencement of cruise in Greece—Foreign jurisdiction clause on ticket—Whether term of contract—Action brought in New South Wales for injury sustained by passenger on cruise—Application by defendant for stay—Principles—Forum non conveniens.
Decisions
WILSON AND TOOHEY JJ: This is an appeal against a decision that the respondent's action against the appellant in the Supreme Court of New South Wales not be stayed. The decision is interlocutory in character. It is an unfortunate example of a case where, as Lord Templeman said in Spiliada Maritime Corp. v. Cansulex Ltd. (1987) 1 AC 460, at p 464, the parties "have chosen to litigate in order to determine where they shall litigate". It involves findings that are necessarily provisional because all the evidence has not yet been heard. It does not answer the questions of substance between the parties. On the other hand, the issues raised by the appeal are important for this is the first occasion on which this Court has been asked to decide whether it will follow recent decisions of the House of Lords in relation to the doctrine of forum non conveniens.
2. In June 1983 the respondent was a passenger on a Greek ship, the M.S. Stella Oceanis, during a cruise of the Aegean Sea. He received serious injuries while taking part in trap shooting on board the ship. At that time the ship was sailing in Greek waters. The respondent is and was, at all material times, a resident of Queensland. The appellant is a company incorporated in Greece. Together with another company, it conducts Mediterranean cruises on its ships under the name "Sun Line Cruises".
3. On 10 September 1985 the respondent began proceedings against the appellant in the Supreme Court of New South Wales, claiming damages for negligence. He obtained leave to serve his statement of claim upon the appellant at its principal place of business in Athens. Leave was granted pursuant to Pt.10, r.2(2) of the Supreme Court Rules (N.S.W.), the basis being Pt.10, r.1(e) as it then stood- "where the proceedings are founded on, or are for the recovery of, damage suffered wholly or partly in the State caused by a tortious act or omission wherever occurring". Service was effected on the appellant which entered a conditional appearance.
4. By notice of motion the appellant sought to have the statement of claim set aside or struck out for lack of jurisdiction in the Supreme Court of New South Wales, alternatively that service of the statement of claim be set aside and, as a further option, that the proceedings be stayed. The appellant made a submission that Pt.10, r.1(e) was invalid as being outside the legislative competence of the parliament of the State of New South Wales. Having…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Oceanic Sun Line Special Shipping Co inc v Fay [1988] HCA 32
Case
[1988] HCA 32
Decision Date
CaseChat Overview and Summary
Oceanic Sun Line Special Shipping Co Inc (the appellant) sought to stay proceedings commenced in the Supreme Court of New South Wales by Mr Fay (the respondent). Mr Fay had booked a Greek island cruise in New South Wales, but the ticket containing a foreign jurisdiction clause was not provided to him until the commencement of the cruise in Greece. Mr Fay subsequently brought an action in New South Wales for injuries sustained during the cruise. The High Court of Australia considered the appeal from the decision of the Supreme Court.
The central legal issues before the High Court were whether the foreign jurisdiction clause on the ticket constituted a term of the contract between the parties, and if so, whether the New South Wales court should exercise its discretion to stay the proceedings on the grounds of *forum non conveniens*. The court was required to determine the principles governing the enforcement of such clauses and the circumstances under which a stay of proceedings would be granted.
The High Court held that the foreign jurisdiction clause was a term of the contract. However, the court found that the appellant had not established a sufficiently strong case to justify a stay of proceedings. The principles applied by the court emphasised that a party seeking a stay based on a foreign jurisdiction clause must demonstrate that it is just and convenient to enforce that clause, and that the plaintiff has no real or substantial connection to the forum. In this instance, the booking of the cruise in New South Wales, the place where the contract was made, was considered a substantial connection. The court also noted that the appellant had not provided sufficient evidence to displace the respondent's right to sue in the jurisdiction where the contract was made.