Colosseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803
- casetreasury
- Aug 11, 2024
- 2 min read
Facts: There was an accident at a port in Seattle where a rig was damaged. Colosseum sued Vanguard, then Vanguard began its own proceedings in Seattle, suing other companies. Vanguard cross-claimed against them in NSW proceedings.
Issue: Was NSW a clearly inappropriate forum?
Held: No, NSW was not a clearly inappropriate forum, pointing to 8 factors:
Proceedings were properly commenced against Vanguard
Joinder of T was valid
NSW proceedings were the only proceedings capable of resolving finally all matters in controversy
In either forum, application of NSW & US law would be required
NSW proceedings were commenced first and cross-Ds could have had the Seattle proceedings suspended.
No difference in ease of enforcement of the orders of the courts
Unavailability of, or inconvenience to, witness who are US residents should not be given undue weight
There will also be NSW witnesses
Held (Palmer J at 69): A review of the authorities shows that factors relevant to the exercise of the Court’s discretion to stay proceedings/decline jurisdiction on the ground of forum non conveniens include (but not limited to):
A consideration of the true nature and full extent of the issues involved in proceedings in the local court and in the foreign court;
Whether, in the light of that consideration, the foreign court has jurisdiction to deal with the same subject matter as is before the local court;
The degree of connection which both proceedings share with the law of the foreign court and the law of the local court;
Where the relevant acts or omissions occurred;
Where the parties reside and carry on business;
Whether local professional or other standards of care have a bearing on the legal quality of the relevant acts or transactions or the liability of the parties;
Where and how the damage was suffered;
Where the relevant evidence in the action is to be found;
Whether the application to the local court for a stay or dismissal has been made with reasonable promptness;
The stage which proceedings in the foreign court have reached in comparison with the stage of proceedings in the local court;
The order in which the two sets of proceedings were instituted and the costs which have been incurred in each;
Whether each court recognises the orders and decrees of the other;
Which court can provide more effectively for the complete resolution of the whole of the controversy between the parties;
That a party properly invoking the jurisdiction of the local court has a prima facie right to insist upon the exercise of that jurisdiction, so long as that prima facie right is not given undue emphasis;
That considerations of comity and restraint should be taken into account where a defendant carries on business in a foreign country and the jurisdiction of the courts of that country would be recognised under local conflict rules;
The undesirability of allowing two independent actions involving the same question of liability to proceed contemporaneously in the courts of different countries;
Whether the dominant purpose of a party in commencing proceedings in one jurisdiction or another is to prevent another party from pursuing remedies available in the courts of another country having jurisdiction