The Judicial system of Australia - Assignment Example

Introduction Jurisdiction is a complicated question that has to do with many different factors – whether a court has personal jurisdiction over bothof the parties, and if there is a forum that is more appropriate to hear the cause of action, which itself is made up of many factors. There is some question in this case if Australia would be the most appropriate forum or England, as the contract in question had a jurisdictional clause, yet Australia has the most connections to the case. Therefore, it is necessary to flesh out all the issues to come up with a proper conclusion. Where should the proceedings commence? The first question centers on in which Australian court should the proceedings commence? The plaintiff incorporated in Queensland, its offices are in Brisbane and the transaction occurred in Melbourne. The answer to this would lie in which of the forum has the appropriate connecting factor with the defendant. The court would look to establish personal jurisdiction over the defendant. It may do that by showing residency, presence, domicile, citizenship or other. The question is if defendant visits Sydney enough that it can be established that he has adopted Australia “voluntarily and for settled purposes as part of the regular order of his life for the time being.” (Akbarali v. Brent LBC). This is doubtful, so this personal connection probably is fruitless. The most promising of these connections is the presence, but this is controversial. Perhaps is there is a tort involved, then the presence at the time of the tortious act is relevant. The tort could be misrepresentation, as Weis apparently knew that the glassware he was selling had not sold well in other countries. If this is a simple breach of contract case, however, then presence at the time of the transaction might not carry enough weight. That said, if the defendant can be served while he is the jurisdiction, then the court would have jurisdiction. So, it might be advantageous to file the case in Sydney, New South Wales, since this is where Weis stays. The other option would be to file the case in Victoria, as this is where the transaction occurred, but this would only be advantageous if the action is based upon tort law. Identify all applications that either party may make to the courts, in Australia or elsewhere, concerning jurisdiction The doctrine of forum non conveniens is relevant in this case. According to the decision in Voth v. Mildra Flour Mills Pty Ltd. (1990) 171 CLR 538, the court would look at which forum is “clearly inappropriate,” rejecting an earlier, more stringent test put forth by Spilada Maritime Corporation v. Consulex Ltd. [1987] 1 AC 460,478 that stated that the proper test was the determine if there was clearly a more appropriate forum. Therefore, either party may request a stay of proceedings, assuming that the defendant files a counterclaim based upon non-payment and breach of contract. Under the Spilada test, the party would have to show which forum is more appropriate for trial, looking at “the location and accessibility of witnesses, the law governing the transaction, and the places of business and residence of the parties.” (Garnett, 1999, p. 2). Under this analysis, Australia would clearly be considered to be the superior forum,as the transaction occurred in Australia, the witnesses would be in Australia, the defendant stays regularly in Australia, and the plaintiff is in Australia. Under the test put forth in Oceanic Sun Line Special Shipping Co. v. Fay (1988) 165 CLR 197, the results would be same, as the defendant would have to show that the continuation of the case against him would be “vexatious and oppressive” because the forum was so inappropriate. There is some question whether Weis statements would bind Collins, as he had authority to make contracts, but there is some doubt that he is able to speak for the company as an agent. Although this is another issue entirely, it is relevant because if Collins is able to dismiss the suit on the basis that Weis statements does not bind it, then Weis would be on his own in the lawsuit, and he would not have an argument about forum non-conveniens as he is often in the area where the forum is located. Whether or not the company is liable would also be relevant in terms of the jurisdiction clause. If Weis himself is liable, then this clause may be invalid, as the contract is between Collins and the plaintiff. If Collins is not a party to the cause of action, then this might invalidate the clause. Also, if the plaintiff could proceed against Weis in tort, based upon misrepresentation, then this clause would be irrelevant. This clause only governs contract disputes, not tortious acts. However, this clause is the best bet for Collins to stay the proceedings and have the case tried in England. Under Akai Pty Ltd v. The Peoples Insurance Co Ltd (1996) 188 CLR 418, the proceedings would be stayed unless the plaintiff showed “strong reasons” why the proceedings should go forward, if the clause is judged to be exclusive, in which other jurisdictions are precluded from hearing the case. As the phrase was “shall be the jursdiction of English courts”, this clause is probably exclusive. What strategy should Farlow adopt, as far as jurisdiction goes? Farlow could adopt the strategy of suing in tort, or maybe suing only Weis, which could invalidate the jurisdiction clause, as Weis was not a party to the contract. The other option would be to use the “Carriage of Goods by Sea Act 1991” which states that agreements that “preclude or limit the jurisdiction of a court of the Commonwealth” has no effect, if the document is related to the carriage of goods is a non-negotiable document that is governed by the Hague Rules. Conclusion Farlows best bet, to get around the jurisdiction clause, would be to sue in tort, as opposed to breach of contract. Unfortunately, that would not bind the company, so, if Weis himself does not have money to pay a judgment, then this probably would not be the best bet. Otherwise, it would be difficult to get around the jurisdiction clause, as it seems to be an exclusive clause, and, unless the plaintiff can show “strong reasons” to invalidate the clause, she probably will lose. Sources Used Akai Pty Ltd v. The Peoples Insurance Co Ltd (1996) 188 CLR 418. Akbarali v. Brent LBC [1983] 2 AC 309. Carriage of Goods by Sea Act 1991. Garnett, R. (1999). “Stay of Proceedings in Australia: A Clearly Inappropriate Test?” Melbourne University Law Review 2: 1-35. Oceanic Sun Line Special Shipping Co. v. Fay (1988) 165 CLR 197 Spilada Maritime Corporation v. Consulex Ltd. [1987] 1 AC 460. Voth v. Mildra Flour Mills Pty Ltd. (1990) 171 CLR 538. Read More