Jurisdiction

Topic 3
Overview

Questions to consider when commencing litigation

Jurisdiction
a. The meaning of jurisdiction
b. Subject matter jurisdiction
 Victorian courts

 High Court of Australia

 Courts exercising federal jurisdiction

c. Territorial (personal) jurisdiction

d. Cross vesting of jurisdiction
 Case transfer within Victoria, Australia

 Forum non conveniens

2
What is jurisdiction?

 Jurisdiction is ‘[t]he scope of a court’s power

to examine and determine facts, interpret and
apply the law, make orders and declare
judgment.’ (Wardley Australia Ltd v Western
Australia (1992) 175 CLR 514)
 Why Jurisdiction is important
The concept of jurisdiction is rooted in
 the power of courts to enforce their judgments, &

 the amenability of the defendant to the writ,

 expressing the Sovereign’s command in right of the

State of Victoria
(Dixon CJ in Laurie v Carroll 1958)

 If a person or property is in the jurisdiction, the

sheriff will be able to physically enforce judgment

4
Types of Jurisdiction

1. Subject matter
jurisdiction
Monetary amount
 Issue in dispute
2. Territorial/geographic
jurisdiction
 Territorial Jurisdiction
Acquired in 3 ways:
1. Presence within the jurisdiction (Laurie v Carroll,
HCA), or

2. Defendant submits to jurisdiction (eg S & G v

Porteous), or

3. Valid service within or outside the jurisdiction

 Service and Execution of Process Act 1992 (Cth)

 Supreme Court Rules for Overseas Service.

 The Courts

In Victoria:
 Supreme Court
 County Court
 Magistrates’ Court

Any other courts?

 The Courts

FEDERAL SYSTEM

 High Court
 Federal Court
 Family Court
 Federal Circuit Court
Federal Circuit Court

9
 What’s a State Matter and what’s a
Federal Matter?
Where do we start? The Constitution
Chapter III
Cth judicial power may only be exercised by:
 The High Court
 A federal court created by federal statute
 A state/territory court invested with federal
judicial power

Everything else: falls to state judicial power

10
Participants in
Litigation
• Victorian courts: ‘plaintiff’ & ‘defendant’.
• Federal system (& VCAT): ‘applicant’ &
‘respondent’.
• Appeals: (State & Federal) ‘appellant’ &
‘respondent’.
Magistrates’ Court
 Magistrates’ Court Act 1989
 Subject matter jurisdiction: any claim for damages or
equitable relief within the jurisdictional limit (up to
$100,000) (s 100).
 The General Civil Jurisdiction covers matters relating to
claims for debts, damages for breach of contract,
damage to property or for injury (e.g. motor car
collisions) and limited neighbourhood matters, e.g.
fencing disputes.
 Excluded: prerogative writs & equivalent admin law
proceedings -s100(2)
 From Magistrates’ Court - Appeal to the Supreme Court
12
 Children’s Court

 Same level as the Mags Court.

 President is a judge of the County Court
 Independent court.
 Deals with matters concerning children under 18
(criminal law) or 17 (family law).
 Family division
 Criminal division & Koori Court (criminal)
 Neighbourhood Justice division
 Cases are heard by Magistrates.
 County Court
 Victoria’s principal trial court
 Original jurisdiction
 Appellate jurisdiction
(criminal appeals from the
Magistrates’ Court)
 County Court Act 1958 (Vic)
 County Court
 County Court Act 1958 (Vic)
 Subject matter jurisdiction “All applications, claims,
disputes and civil proceedings regardless of the type of
relief sought or the subject-matter as are not by this or any
other Act excluded from its jurisdiction” (section 37(1)(a)).
 Previous jurisdictional limit ($200,000), abolished 1 Jan
2007- Courts Legislation (Jurisdiction) Act 2006.
 From County Court-Appeals to Victorian Court of Appeal

15
 Supreme Court
 Is divided into two parts
1. Trial division, comprising
 The Commercial Court

 Common law division

 Criminal division

2. Appel division: the Court of Appeal

Hears appeals (including interlocutory) from
 County Court civil trials
 Supreme Court civil trials
 VCAT hearings
Commercial Court
Lists A – E (one justice heads each list)

Arbitration

Technology Engineering and Construction

Corporations

Intellectual Property

Taxation

Admiralty

17
Common Law Division
Judicial Review and Appeals List

Major Torts List

Personal Injuries list

Professional Liability List

Valuation, Compensation and Planning

Civil Circuit List

Probate

Dust Diseases

Testators Family Maintenance

Employment and Industrial

18
Court of Appeal
 Is the Appeal division of
the Supreme Court of
Victoria
 Established under the
Constitution (Court of
Appeal) Act 1994.
 Hears appeals from the
Supreme Court and the
County Court.
19
 Supreme Court jurisdiction
Constitution Act 1975 (Vic)
S 75(1) A Court shall be held in & for Victoria …&
styled “The Supreme Court of the State of
Victoria”…
s 85(1)… Subject to this Act the Court shall have
jurisdiction in or in relation to Victoria …in all
cases whatsoever and shall be the superior
court of Victoria with unlimited jurisdiction.
Why the Supreme Court?
 VCAT
 VCAT established as a super tribunal in 1999 pursuant to
Victorian Civil and Administrative Tribunal Act 1998 (Vic).
 Jurisdiction derives from numerous pieces of legislation
including:
 Fair Trading Act 1999;
 Residential Tenancies Act 1997;
 Domestic Building Contracts Act 1995;
 Equal Opportunity Act 1995;
 Planning and Environment Act 1987; and
 Guardianship and Administration Act 1986.
 Jurisdiction determined by nature of disputedispute (an Act
conferring power to VCAT to determine / review), rather than
amount of dispute.
 Residential
Civil Administrative Human Rights
Tenancies

• Building and • Legal • Guardianship • Residential

Property List Practice List List Tenancies
• Civil Claims • Planning and • Human List
List Environment Rights List
• Owners List
Corporations • Review and
List Regulation
List

23
Federal Courts

High Court of Australia

Federal Court Family Court

Federal Circuit Court

24
Judicial power of the
Commonwealth
Ch III: The Judicature
 Section 71
The judicial power of the Cth shall be vested in a
Federal Supreme Court, to be called the High Court
of Australia, & in such other Federal Courts as the
Parliament creates, & in such other courts as it
invests with Federal jurisdiction. The High Court
shall consist of a Chief Justice and so many other
justices, not less than 2, as the Parliament
prescribes.
 So…
Commonwealth judicial power may
only be exercised by:
 The High Court;
 A federal court created by federal
statute; and
 A state/territory court invested
with federal judicial power.
 Invested jurisdiction:
Constitution s 77
Parliament has power to make laws defining the
jurisdiction of any federal court other than the High
Court and defining the extent to which the
jurisdiction of any federal court shall be exclusive to
that which belongs to or is invested in the courts of
the state and also investing any court of a state with
Federal jurisdiction.
 Original jurisdiction of High Court
 Constitution s75: All matters:
 Arising under a treaty
 Affecting representatives of other countries
 Cth or person suing/being sued as representative of Cth is
a party
 B/w states; b/w residents of different states; b/w a state &
resident of another state
 Writ of madamus/prohibition or injunction sought against
officer of Cth
 Constitution s76 & Judiciary Act s30:
 Matters involving interpretation of Constitution
 High Court
Jurisdiction
Exclusive jurisdiction:
s 38 Judiciary Act 1903 Cth, includes
matters arising directly under any treaty & suits
between states
 High Court Appellate jurisdiction
 s 73 Constitution: jurisdiction to hear appeals from
all judgments, decrees, orders & sentences,
 Of any justice/s exercising High Crt’s original jurisdiction
 Of any other federal court exercising federal jurisdiction,
or the Supreme Court of any state…
 Need special leave to appeal
 Criteria for special leave
Judiciary Act s35A
 Proceedings involve a question of law of public
importance; or
 HCA required to resolve differences of opinion b/w
courts as to the state of the law;
and
 Interests of the administration of justice, either
generally or in the particular case, require the HCA
to consider the judgment
 Process for getting Special Leave
 File written summary of argument (< 12 pages).
 Appeals can be dismissed on the papers i.e.
without any oral hearing.
 20 minutes to convince the High
Court your case is worthy of
consideration.
 The court has time to decide only
about 50-60 cases a year
 Success rate of 6-8%
 Michael Kirby on maximising special leave perfor
mance
 ‘such other Federal Courts as the
Parliament creates’

 1975: Family Court

 1976: Federal Court

 1999: Federal Circuit Court

 Family Court

Family Law Act 1975 (Cth) deals with:

 Divorce
 Property division
 Parenting orders
 Child related matters
 Family Court
 Established under the Family Court Act Cth
1975
 It has a broad Federal jurisdiction in divorce,
children's issues, property and maintenance
 Original jurisdiction (for the more complex family
law matters) and appellate jurisdiction (from the
Federal Circuit Court)

36
 Policy consideration: controversy over
federal court reform (2018-)
 Backlogs in Family Court perceived as growing, performance
improvements are sought
 May 2018: Cth A-G proposes merging the Federal Circuit Court
with Family Court: failed to attract bipartisan support

 April 2019: ALRC Family Law inquiry :

National family court should be scrapped and powers given to stat
es, according to review of the system

37
 Federal Circuit Court
 Established by the Federal Magistrates’ Court Act
1999
 Rebadged in 2012
 established to provide a simple & accessible
alternative to litigation in the Federal Court & Family
Court & to relieve the workload of those courts
 family law & child support, administrative
law, admiralty law, bankruptcy, copyright, human
rights, industrial law, migration, privacy and trade
practices.
 shares those jurisdictions with Family Court & Federal
Court
38
 Federal Court
Original jurisdiction
 Such original jurisdiction as is invested in it by laws made
by Parliament; S 19(1) Federal Court of Australia Act 1976
(Cth)
 Extends to any matter
 in which the Cth is seeking an injunction or declaration,
 arising under the Constitution or involving its interpretation, or
 arising under any laws made by Parliament: s 39B Judiciary Act

 No inherent jurisdiction – it is a creature of statute – but

incidental jurisdiction based on principles of statutory
interpretation
Federal Court

 Appellate jurisdiction (s 24(1) FCAA)

 Appeals from single judge of Fed Court
 From SC of a state or territory exercising
federal jurisdiction
 From Federal Circuit Court
Accrued Jurisdiction
S 22 Federal Court of Australia Act
 The Federal Court shall grant all remedies
 to which any of the parties before it appear to be entitled
 so that, as far as possible, all matters in the controversy
between the parties may be completely and finally
determined, and multiplicity of proceedings avoided.

 ‘matters’ given a broad definition – any action arising from

same facts or transaction.
 As long as the ‘state’ part of the action is non severable from
the Fed part of the action – the Fed Crt will hear it.

41
 Fencott v Muller (1983) 152 CLR 570

 Sale of a restaurant and wine bar in Perth.

 Purchaser commenced Fed Crt proceedings alleging false
representations as to business profits and turnover: fraud,
breach of contract, negligence and breach of (then) Trade
Practices Act
 Respondent objected – tort and contract are ‘state’ matters

 Held
 Fed Court has jurisdiction to determine the whole of the
controversy between the parties, even if some part of the
controversy would otherwise be outside the jurisdiction

42
Fencott v Muller
 HC held: The Court has jurisdiction to determine
the whole of the controversy between the
parties, even if some part of the controversy
would otherwise be outside the jurisdiction.
 Matter = all causes of action arising from the
same events/transactions.
 Otherwise – so inefficient! But.........
 If the Federal Claim is untenable, no jurisdiction to hear the
‘state’ matter will accrue (Johnson Tiles v Esso)
 Accrued jurisdiction is discretionary – Stack v Coast
Securities (1983): must appear to the court that the ‘state’
cliam arises from the same facts/transaction
43
 Problem - subject matter overlap
 The problem (eg Aust Consumer Law, breach of contract, tort)
 A plaintiff buys a part, installs it in her machine, part malfunctions, explosion
destroys factory

 State or federal court?

 Short answer – if want to bring all actions together
 Fed Crt: rely on ‘accrued jurisdiction’
 SCV: rely ‘cross vesting’ legislation

 The original solution

 Hear matter in the Fed Crt under accrued jurisdiction
 Problem?
 If the federal claim is untenable, no jurisdiction to hear the ‘state’ matter
will accrue (Johnson Tiles v Esso)
44
 Cross-vesting – the better solution?

While Federal Courts could hear cases involving state law

(under accrued jurisdiction), the reverse was not always the
case – for example:

 Federal Court could hear a claim for breach of consumer

law and related claim for breach of contract under its
accrued jurisdiction
BUT
 State court hearing a breach of contract claim could not
also deal with a related consumer law claim

 Solution was to introduce cross-vesting legislation

45
Cross-vesting – the intention
 Cross-vesting was meant to bring an end to the exclusive
jurisdiction of state and federal courts

 Aim was that a single court provide complete relief, regardless of

whether the claim involves state and/or federal law

 Uniform cross-vesting legislation (state and federal) was

introduced in 1987.
 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic)

 Cross-vesting legislation sought to provide:

1. State Supreme Courts with the jurisdiction of all the other state
Supreme Courts
2. State Supreme Courts with the jurisdiction of the Federal Court
(except native title, industrial laws), Family Court
3. Federal Court with State Supreme Court jurisdiction
(challenged)
46
Elements of cross-vesting

1. Vesting/conferral of
jurisdiction

2. Transfer of proceedings
 The cross vesting - originally gave
1. The State Supreme Courts the jurisdiction
 of all other State Supreme Courts
 of the Federal Court (except for Federal Native title and
industrial laws) & the Family Court

2. The Federal courts got State Supreme Court

jurisdiction

BUT

48
Re Wakim; ex parte McNally (1999)
198 CLR 511
 cross-vesting legislation held to be unconstitutional to
extent that it confers state jurisdiction on Federal Court
(& Family Court)

 Only the Cth Parliament can make laws defining the

jurisdiction of federal courts, & only with respect to
those matters set out in ss 75 & 76 of the Constitution

 State Parliaments cannot validly confer jurisdiction on

Federal courts

 To the extent that the CV Acts purported to confer state

Life after Wakim
 State courts may exercise federal jurisdiction
 Cross-vesting survives
 Federal Court has accrued jurisdiction
 Can still exercise state jurisdiction if arising from the
same “matter”
 Federal courts not otherwise able to exercise
state jurisdiction
 Cross-vesting unconstitutional
 Courts may transfer to each other
Territorial jurisdiction
 Federal Courts have jurisdiction over Australians
 State Courts – eg SCV – have jurisdiction over Victorians

Acquired in a number of ways

 Presence within the jurisdiction (Laurie v Carroll)

 Defendant submits to jurisdiction

 By agreement – eg provision in contract
 By appearance in litigation (in response to service)

 Valid service outside the jurisdiction

 Service and Execution of Process Act 1992 (Cth) deals with
interstate service
 Supreme Court rules for overseas service (SCR O7)

51
Service interstate

 The Service and Execution of Process Act 1992 (Cth)

provides at s 15(1) that initiating process may be served in
any part of Australia:
 ‘An initiating process issued in a State may be served in another State.’

 Consequence: SCV has jurisdiction over a NSW resident, as

long as that person
 is validly served (will address in Topic 7)

 with the correct SEPA form attached to the writ

• What if the NSW resident objects to coming to Victoria to

defend the action?
 Can seek a case transfer
52
 Service Overseas

All Australian court rules allow for service of a defendant outside of

Australia (eg SCV Order 7)

 Must be nexus between the case against the D and Vic, for example:
 cause of action arose in Victoria

 land the subject of the action is in Victoria

 contract was made in Victoria

 The SCV may have jurisdiction over a Canadian as long as

 The person is validly served (will return to this)

 The nexus factors are endorsed on the writ

 What if the Canadian objects to coming to Victoria to defend the

action?
 They can apply for a stay of proceedings on the basis that this court

is an inappropriate court to hear the matter (forum non conveniens)

53
 Transfers Between Courts per Jurisdiction of
Courts (Cross-vesting) Act 1987 (Vic)

 5(1) – from Sup Ct to Fed or Family Court

 5(2) – from Vic Sup Ct to another Sup Ct

 5(3) – from another Sup Ct to Vic Sup Ct

 5(4) – from Fed or Fam Court to Sup Ct

 3 factors to be used when deciding to transfer

Where transfer must be ordered
(per cross-vesting legislation s 5)
 Where there are separate but related proceedings pending in
a different court, and the court considers it would be more
appropriate for all proceedings to be decided by the other
court (s5(2)(b)(i));

 Where there is only a single proceeding pending, if it would be

more appropriate for the matter to be determined in another
court (s 5(2)(b)(ii)); and

 Where it is otherwise in the interests of justice that there be a

transfer (s5(2)(b)(iii))

55
 Questions to be asked
1. Before the passage of the c-v legislation, where
would the case have been heard?
2. Is there another proceeding pending somewhere
else?
3. Is it otherwise in the ‘interests of justice’ to
transfer?
…BHP Billiton v Schultz
(2004) 221 CLR 400
 Plaintiff suffered from asbestosis which he claimed was the
result of exposure to asbestos while he worked for BHP at
Whyalla in South Australia
 Commenced proceedings in NSW Dust Diseases Tribunal
 BHP (incorp in Vic, carried on business in SA and NSW)
sought to have matter moved to the NSW SC so then it could
be transferred to the Supreme Court of South Australia
 Not in dispute that law of SA would be the substantive law
that would govern the claim
 Test: What do the interests of justice require?

57
 …BHP Billiton v Schultz
 High Court held: ‘the interests of justice are not the same as
the interests of one party, and there may be interests wider
than those of either party to be considered’.
 e.g. location of witnesses and evidence

 There are many bases for considering one court to be the

natural forum
 Location of the D’s headquarters
 The Pl’s home state
 The speed with which a court/tribunal can deal with the case
is a consideration relevant to the interests of justice
(especially when the Pl is dying)

58
 …BHP Billiton v Schultz

Gleeson CJ, McHugh, and Heydon JJ:

a nuts & bolts management decision as to which
court, in the pursuit of the interests of justice, is more
appropriate to hear & determine the substantive
dispute….[w]eighing considerations of costs, expense,
& inconvenience, even when they conflict, is a familiar
aspect of [this] kind of case management…
Slater & Gordon v Porteous
per Whelan J
A case raising significant issues concerning
liability for the legal costs of litigation would
ordinarily be most appropriately dealt with in the
court in which the litigation in which the costs
were allegedly incurred was conducted. This is a
factor militating in favour of transfer to Western
Australia..
Media piece
…Whelan J in Porteous
Re convenience of the parties and the
witnesses, my view is that Victoria is more appropriate. A
trial in WA would be inconvenient to Slater & Gordon,
whose practice is substantially in Victoria. A trial in Victoria
may involve some inconvenience to Mrs Porteous, but it is
significant that she is herself in the process of moving her
residence to Victoria, & she has already made investments
in residential property here. I cannot accept that she will
be greatly inconvenienced by litigating in the State which
she has chosen to make her permanent home in the near
future.
 …Exclusive jurisdiction clause
 …In an application of this kind, a person in Mrs Porteous’ position must be
taken to have been conscious of the connecting factors with Western
Australia, namely, that the litigation had been substantially conducted
there, & must have been conscious of any potential inconvenience to her of
litigating in Victoria, when she signed the deed which contained a
provision whereby Victoria was agreed to be the exclusive jurisdiction
for the determination of disputes.
The determination of the application comes down to the need to balance the
factor that the issues raised by Mrs P are more appropriate for the
determination of the Supreme Court of WA, against the factor that the
parties have agreed to litigate in Victoria.
My conclusion is that the parties’ agreement is…the overwhelming factor.
Mrs P, having taken at least some independent legal
advice on the proposed terms, signed a deed, one of
the terms of which required her to litigate disputes in
Victoria, & she should not be permitted to go back on
that agreement in the circumstances existing here.
https://www.abc.net.au/news/2018-08-28/legal-action-lodged-over-spirit-of-tasmania-pony-deaths/10174570 64
 Williams & Ors v TT-Line Company & Anor
[2019] VSC 55 (13 February 2019)

Facts
 Plaintiff horse owners sought damages in relation to death of 13
horses in Jan 2018 on the Spirit of Tasmania
 Proceedings in VSC allege breach of contract and the ACL, as
well as negligence in relation to management of horses
 Proceedings issued Aug 18, statement of claim filed Sept 18,
defences filed Oct 18
 Dec 18: TT-Line files and serves summons seeking transfer of
proceeding to Supreme Court of Tasmania
Result
 Application rejected – Court not satisfied Tasmanian court a
more appropriate forum than VSC
65
 Williams & Ors v TT-Line (cont.)

Factors
a. Place where wrong occurred: probably Cth waters, or Victoria
b. Residence of parties: parties ‘resident’ in NSW and Tas, and
defendants carry on business of Spirit of Tas in Vic and Tas
c. Convenience of parties, witnesses: Melb most convenient for Ps
and 2nd Def (lawyers in Melb). Many TT-Line witnesses are in Tas,
but mostly Devonport, and their business is transport between
Devonport and Melb. Plus technology helps.
d. Relevant law: proceeding governed by Aus law.
e. Experience of particular court: Noted superior case management
of SCV (Major Torts, Admiralty specialists lists)
f. Condition of parties: In Melb, Ps have access to lawyers on ‘No
Win, No Fee’ basis – wouldn’t happen in Tas
66
Cross-vesting: 3 things to remember

1. Gives the SCV the jurisdiction to hear federal matters

2. Does not give the Federal Court jurisdiction to hear

State matters (but at CL, the Federal court has accrued
jurisdiction to hear State matters that form part of the
controversy)

3. The State SCs can transfer matters from one SC to

another

67
Case Transfer within Victoria

Courts (Case Transfer) Act 1991 (Vic)

 to ensure that judicial resources matched to

case needs
 regulates case flow within Victorian Courts

 facilitates transfer of individual cases so that

‘seriousness’ is matched to the skill, experience

& authority of the court
 to make general transfers from one court to

another, to match case loads to court capacity

Risks with international defendants: forum shopping &
challenges to jurisdiction

69
 Forum non conveniens
 Common law principle which empowers courts to
refuse to take jurisdiction over matters where there is
a more appropriate forum available to the parties.
 Also operates as a conflict of laws doctrine applying
between courts in different countries, and between
courts in different jurisdictions in the same country, in
order to determine where a case should be heard
 An argument made by a defendant seeking to resist
the territorial jurisdiction of a court (eg an overseas
defendant)
 Forum non conveniens
 Test in Aust: Stay will be granted if the Australian court is a
clearly inappropriate forum.
 Oceanic Sun Line Special Shipping Co v Fay (1988) 165

CLR 197;
 Voth v Manildra Flour Mills (1990) 171 CLR 538

 Test in most other common law jurisdictions: Stay will be

granted if another forum is more appropriate.
 Spiliada Maritime Corporation v Cansulex [1987] AC 460

 Other countries: Appropriate forum may be determined by

treaty, e.g. European Union.
 Voth v Manildra Flour Mills

“…the principles to be applied … in applications for a stay on the

inappropriate forum grounds are those stated by Deane J in Oceanic
Sun, at pp 247-248. In the application of those principles the
discussion by Lord Goff in Spiliada (at pp 477-478, 482-484) of
relevant ‘connecting factors’ and ‘a legitimate personal or juridical
advantage’ provides valuable assistance.” [at 51]

72
 Spiliada Factors
(or relevant connecting factors)
Include: -
1. expense and convenience
2. where did the cause of action arise
3. where do the parties reside or carry on business
4. where do the majority of the witnesses reside (because looking
to do convenience for witnesses as well as the parties)
5. which law will apply?
6. are there any other parties involved and are they amenable (i.e.
liable to) to any particular jurisdiction
Voth v Manildra Flour Mills (1990)
• It is not enough that another court (e.g. a US
court) is more appropriate – no stay will be
granted unless the VSC inappropriate.
• A stay should be granted if the local court is a
clearly inappropriate forum which will be the
case if continuation of the proceedings in that
court would be oppressive (in the sense of
seriously and unfairly burdensome, prejudicial
or damaging) or vexatious (in the sense of
productive of serious and unjustified trouble and
harassment) or an abuse of process. 74
 See also Rowe v Grünenthal
 group proceeding for injury suffered from use of
thalidomide: Rowe v Grünenthal GmbH & Ors
[2011] VSC 657
Thalidomide victims guaranteed care for the rest of
their lives under Australian-first court settlement

75
 Rowe v Grünenthal GmbH [2011] VSC 657
Facts
• Lynette Rowe is a Thalidomide survivor, born in 1962 with no arms or legs
after her mother consumed the drug during pregnancy
• Rowe was lead plaintiff in class action against:
– D1: Grünenthal GmbH, a company registered in Germany
– D2: The Distillers Company (Biochemicals) Ltd, incorporated in UK
– D3: Diageo Scotland Limited, a company incorporated in Scotland
• At early stage, D1 and D2 sought court order staying proceeding on grounds
that Vic not a convenient forum pursuant to inherent jurisdiction of Court as
well as SCR (rr 8.03(3), 7.05(1). 7.05(2)(a) & 8.09(a))
Result
• Application dismissed – Court not convinced VSC a wholly inappropriate forum
76
Rowe v Grünenthal GmbH & Ors

• Grünenthal sought a stay on the basis of

forum non conveniens that the natural forum
was Germany, and the VSC is an
inappropriate forum.
 Grünenthal sought a stay on the basis of forum non conveniens
that the natural forum was Germany, & the VSC is an
inappropriate forum.

Rowe submitted that… Grünenthal submitted that…

 Lay witnesses live in
Australia
 Almost all in Victoria
 Experts almost all Australia
 Injury suffered in Victoria
 Evidence of the
consequences of her injury
in Victoria
 Resident of Victoria
 Facts concerning the
development of thalidomide
occurred in Germany
 Such evidence is located in
Germany
 Most documents are also in
German
 Grünenthal ’s witnesses are
mostly located in Germany
 Beach J decided that….
• There are substantial connecting factors between this
proceeding and Germany
• However, the proceeding also has substantial
connection with Victoria
• I accept that significant inconvenience will be caused to
Grünenthal in being required to defend this proceeding
in Victoria.
• On the other hand, it appears to me, that equally
significant inconvenience would be suffered by the
plaintiff if she was required to litigate outside Australia.
• Having considered all the relevant connecting factors, I
am unable to conclude that Victoria is a clearly
inappropriate forum.
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The Age
 JURISDICTION - summary

Subject matter jurisdiction – what court has power to deal with cases
of this type?
 State courts –hear State matters
 Which court depends on complexity and $ sought
 Federal Courts
 Claims that require both – see cross-vesting
 Claims made in the wrong court – see case transfer

Territorial jurisdiction – which parties does the court have power over?
• Ds within the jurisdiction
• Ds who submit to the jurisdiction
• Ds who are validly served outside the jurisdiction

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