Garsec v His Majesty the Sultan of Brunei (2008) NSWCA 211

Facts: Garsec (P) brought proceedings in NSW Supreme Court, alleging that The Sultan (D) (acting through his private secretary) had failed to perform a contract (Sultan agreed to buy rare manuscript of the Koran from P for $10 million). P sought specific performance or damages for breach of contract. The Sultan applied to have the matter stayed on the basis NSW was forum non conveniens.

Issue: Did Sultan’s conduct constitute submission to jurisdiction? Could D withdraw and go to another Court? D just filed a notice of motion for summary dismissal that didn’t raise any issue of jurisdiction (did not seek leave to withdraw its appearance as lawyer had advised).

Outcome: Yes, his actions constituted submission. D could not withdraw its appearance because D had submitted to jurisdiction. The NSW Court of Appeal dismissed the primary judge’s stay of proceedings. 

Reasoning: The conduct that constituted submission was D not withdrawing and filing for summary dismissal (this is contesting the merits of the case). “The application D made cannot be characterised as something merely procedural (e.g. seeking further particulars/production of documents – to enable better understanding of the case and consider their options). Instead, it was a substantive application…”

Issue: Was NSW Supreme Court forum non conveniens (FNC) (even though there was no alternative court)?

Held: The foreign court (Brunei) was not an available forum as D was immune there so P had no alternative for claim regarding the sale of the Qur’an in Brunei. The Court nonetheless held that the NSW Supreme Court was found to be FNC. Even though P was unable to get a remedy elsewhere, this was not necessarily a knockout point.

Ratio: A significant factor in determining whether NSW Supreme Court is appropriate is whether or not there is an available foreign forum. However, it is not enough to say that another court is appropriate; it must be shown that NSW is clearly inappropriate (irregardless of whether another forum is available).

Principle: The availability of claiming relief/resolving the issue in a competing foreign forum is relevant (‘ordinarily an important factor’) but not determinative of whether the Australian proceedings themselves are appropriate and should therefore be stayed.