Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2

Facts: Contract between a Canadian manufacturer (Bombardier) and an AU company (Avwest Aircraft). AU company (P) alleged breach of contract and served D with leave of Western Australian Supreme Court (WASC). D filed and served conditional appearance denying jurisdiction of WASC, and sought to set aside grant of leave to issue and serve writ. The substantive law was the law of NY. P’s witnesses in WA, plus lots of evidence documented there.

Issue: Was WASC a clearing inappropriate forum (CIF)?

Held: WASC was not CIF even if D was based in Canada, Ws were there and Canadian courts likely also have J. CIF requires identifying relevant facts, circumstances connecting the parties and the subject matter to the litigation to the forum. The Court made similar statements as in Voth. Whether or not a foreign forum is available is always a relevant consideration; however, it is only one factor in the equation and the court must evaluate all the relevant factors.

Principle: Question of whether the local court is a clearly inappropriate forum does not turn 'upon an assessment of the comparative procedural or other claims of the foreign forum', or require the formation of subjective views about either the merits of that forum's legal system or the standards and impartiality of those who administer it.