Oceanic Sun Line Special Shipping Co inc v Fay

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.

The appeal was dismissed with costs.