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Shorter Articles and Notes
I am grateful to Professor Jonathan Hill, Professor Harry McVea and the journal's anonymous reviewers for their helpful comments on an earlier draft of this article. Any errors are mine.
I.
INTRODUCTION
December 2015 marked the twenty-fifth anniversary of the High Court of Australia's landmark ruling in Voth v Manildra Flour Mills Pty Ltd.1This judgment, which has been widely regarded as the definitive pronouncement on the application of the forum (non) conveniens doctrine in Australia, was significant for two main reasons. First, it addressed some of the uncertainties2concerning the practice of discretionary (non-)exercise of jurisdiction in Australia which had been generated following the High Court's judgment in Oceanic Sun Line Special Shipping Co Inc v Fay.3The decision in Voth confirmed that the 'clearly-inappropriate-forum test', which had been first conceived of in Deane J's judgment in Oceanic Sun,4provided the basis for the Australian court's approach to the practice of discretionary staying of proceedings, and the related notion of service out of the jurisdiction.
Second, and more fundamentally, the judgment in Voth has been widely regarded as signifying a point of divergence in the Australian court's approach to the forum (non) conveniens doctrine from the position in England, following its restatement in 1986 in Spiliada Maritime Corporation v Cansulex Ltd.5Many private international law scholars and practitioners have observed that the Voth test 'is not the same as that propounded in the Spiliada [case]';6that it is, in fact, a 'unique approach'7which is 'stricter' than the English doctrine,8making it harder for a defendant to obtain a stay of proceedings in Australia than in England. In many ways, the prevailing view is that the Voth and Spiliada tests are functionally different doctrines.9
A quarter of a century on from the ruling in Voth, this article reconsiders the Australian forum (non) conveniens doctrine. The discussion is presented in three main parts. Part II outlines briefly the doctrine's origins and development in Australia. Part III sets out the orthodox understanding of the modern-day forum (non) conveniens doctrine in Australia. Part IV challenges the prevailing conception of the Voth test, based on a detailed analysis of...