Practice—Action—Stay—Action brought in Australian State for damages for negligent accounting advice given in foreign country—Loss suffered there and in Australian State—Place of commission of tort—Forum non conveniens—Appropriate forum.
2. The facts are succinctly related in the judgment of Gleeson C.J. in the New South Wales Court of Appeal. The two respondents (plaintiffs) are companies incorporated and resident in New South Wales. The appellant (defendant) is an accountant who is and was at all material times a citizen and resident of the United States of America, practising in the State of Missouri. He is a member of a partnership named Deloitte Haskins and Sells. It is a firm which is separate and distinct from an Australian firm of accountants of the same name, although some form of association exists between the two firms.
3. The respondents sue for damages for professional negligence. They assert that the Supreme Court of New South Wales has jurisdiction to entertain the action because the respondents suffered some or all of the relevant damage in that State. The appellant's contention that the Supreme Court of New South Wales lacked jurisdiction to entertain the action, which was rejected both at first instance and by the Court of Appeal, is no longer pursued in this Court. Accordingly, we need not concern ourselves with what the Court of Appeal had to say on that topic. It is sufficient to say that the proceedings fall within Pt 10, r.1(1)(e) of the New South Wales Supreme Court Rules, which provides for the service of originating process outside the State "where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring": see Flaherty v. Girgis (1987) 162 CLR 574.
4. On 17 March 1986 an order was made giving the respondents leave to serve the statement of claim outside the State of New South Wales and in the State of Missouri, United States of America. The appellant, having filed a conditional appearance to that statement of claim, moved to have the statement of claim or the service of it set aside and sought an order discharging the earlier order giving leave to serve outside the jurisdiction and, in the…
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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AGLC
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Case
[1990] HCA 55
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal from a decision of the Supreme Court of New South Wales concerning an application for a stay of proceedings. The appellant, Mr. Voth, had commenced proceedings in New South Wales against the respondents, Manildra Flour Mills Pty Ltd and others, alleging negligence and breach of contract. Mr. Voth sought damages for personal injuries sustained while working for the respondents in a factory located in New South Wales. The respondents sought a stay of these proceedings, arguing that the litigation should be conducted in the United States, where Mr. Voth resided and where the alleged negligence occurred.
The central legal issue before the High Court was whether the New South Wales court had jurisdiction to entertain the proceedings and, if so, whether it should exercise that jurisdiction or grant a stay of proceedings on the grounds of *forum non conveniens*. This involved determining whether New South Wales was a clearly inappropriate forum for the trial of the action, considering factors such as the location of the parties, witnesses, evidence, and the law governing the dispute.
The High Court, in a joint judgment, affirmed the principles governing the exercise of discretion to stay proceedings on the grounds of *forum non conveniens*. The Court held that a stay should only be granted if the defendant can demonstrate that the local forum is clearly inappropriate. This requires a substantial imbalance in favour of the foreign forum, considering all relevant circumstances. The Court found that the New South Wales court had jurisdiction and that, while the United States might be a more convenient forum, it was not so clearly inappropriate as to warrant a stay of proceedings. The Court emphasised that the plaintiff's choice of forum is a significant factor and should not be lightly disturbed.
The appeal was allowed, and the order of the Supreme Court of New South Wales granting a stay of proceedings was set aside. The proceedings in New South Wales were permitted to continue.