Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 (30 June 1988)

HIGH COURT OF AUSTRALIA

OCEANIC SUN LINE SPECIAL SHIPPING COMPANY INC. v. FAY [1988] HCA 32; (1988) 165 CLR 197
F.C. 88/027

Practice

High Court of Australia
Wilson(1), Brennan(2), Deane(3), Toohey(1) and Gaudron(4) JJ.

CATCHWORDS

Practice - Action - Stay - Cause of action arising out of jurisdiction - Greek island cruise booked in New South Wales - Ticket not given to passenger until commencement of cruise in Greece - Foreign jurisdiction clause on ticket - Whether term of contract - Action brought in New South Wales for injury sustained by passenger on cruise - Application by defendant for stay - Principles - Forum non conveniens.

HEARING

Canberra, 1987, December 10.
Brisbane, 1988, June 30. 30:6:1988
APPEAL from the Supreme Court of New South Wales.

DECISION

WILSON AND TOOHEY JJ: This is an appeal against a decision that the respondent's action against the appellant in the Supreme Court of New South Wales not be stayed. The decision is interlocutory in character. It is an unfortunate example of a case where, as Lord Templeman said in Spiliada Maritime Corp. v. Cansulex Ltd. (1987) 1 AC 460, at p 464, the parties "have chosen to litigate in order to determine where they shall litigate". It involves findings that are necessarily provisional because all the evidence has not yet been heard. It does not answer the questions of substance between the parties. On the other hand, the issues raised by the appeal are important for this is the first occasion on which this Court has been asked to decide whether it will follow recent decisions of the House of Lords in relation to the doctrine of forum non conveniens.

2. In June 1983 the respondent was a passenger on a Greek ship, the M.S. Stella Oceanis, during a cruise of the Aegean Sea. He received serious injuries while taking part in trap shooting on board the ship. At that time the ship was sailing in Greek waters. The respondent is and was, at all material times, a resident of Queensland. The appellant is a company incorporated in Greece. Together with another company, it conducts Mediterranean cruises on its ships under the name "Sun Line Cruises".

3. On 10 September 1985 the respondent began proceedings against the appellant in the Supreme Court of New South Wales, claiming damages for negligence. He obtained leave to serve his statement of claim upon the appellant at its principal place of business in Athens. Leave was granted pursuant to Pt.10, r.2(2) of the Supreme Court Rules (N.S.W.), the basis being Pt.10, r.1(e) as it then stood- "where the proceedings are founded on, or are for the recovery of, damage suffered wholly or partly in the State caused by a tortious act or omission wherever occurring". Service was effected on the appellant which entered a conditional appearance.

4. By notice of motion the appellant sought to have the statement of claim set aside or struck out for lack of jurisdiction in the Supreme Court of New South Wales, alternatively that service of the statement of claim be set aside and, as a further option, that the proceedings be stayed. The appellant made a submission that Pt.10, r.1(e) was invalid as being outside the legislative competence of the parliament of the State of New South Wales. Having regard to the decision of the Court of Appeal in Flaherty v. Girgis (1985) 4 NSWLR 248 (appealed from to this Court, but on another ground: see [1987] HCA 17; (1987) 162 CLR 574), the submission was formal only and it was rejected. Effectively the only question before Yeldham J., the primary judge, was whether the action brought by the appellant against the respondent should be stayed. His Honour declined to order a stay and, on appeal, his decision was upheld. The appeal to this Court does not raise any question of the validity of the rule.

5. Underlying the submissions of counsel was a question as to when and where a contract of carriage was made between the parties and the terms thereof. Yeldham J. and the majority in the Court of Appeal (Glass and McHugh JJ.A.; contra Kirby P.) held that such a contract was made in Sydney. Yeldham J. concluded that it was made when the appellant's agent received the balance of money due to it and issued an exchange order entitling the respondent to obtain a ticket from the appellant in Greece, before boarding the ship. The majority in the Court of Appeal thought that a contract may have come into existence at an earlier time but in any event no later than the issue of the exchange order. We agree with Yeldham J.'s conclusion in this regard which in any event was a view shared by the Court of Appeal; our reasons require consideration of the circumstances surrounding the respondent's participation in the tour and analysis of the documentation issued by the appellant.

6. In 1983 the respondent and his wife made arrangements to travel to Europe. The arrangements were made by the respondent's mother-in-law, Mary Rossi, who was the proprietor of a Sydney travel agency known as Mary Rossi Travel. Mary Rossi Travel was organizing a luxury tour of Europe and the respondent and his wife decided to join the tour, but only for that section involving a cruise of the Greek islands on the Stella Oceanis. The respondent's wife went to Sydney from time to time to make the travel arrangements. She brought back a brochure containing information about "Sun Line 1983 Summer Cruises" to the Greek islands and she showed the respondent the cabin which had been booked for them. The respondent read the brochure only casually and in particular did not read any of the material printed inside the back cover under the heading "Things To Know Before You Go". On 30 March 1983 a deposit was paid to Mary Rossi Travel and in turn to J.M.A. Tours which was the general sales agent for Sun Line Cruises. On 7 April J.M.A. Tours raised an invoice against Mary Rossi Travel for the cost of the respondent and his wife's cruise on the Stella Oceanis. The invoice identified their cabin as A24. On or about 27 April 1983 the respondent and his wife went to Sydney where they paid Mary Rossi Travel the balance due for their overseas trip, including the Greek islands section of the tour. On the day following they flew to London and on 28 May they met up with Mrs. Rossi and members of the tour group in Athens. Before the respondent left Australia, he received an exchange order for the Stella Oceanis cruise portion of the tour. He received this document in exchange for payment to J.M.A. Tours of the cost of the tour. On 28 May Mrs. Rossi went to the Sun Line office in Athens where she presented the exchange vouchers on behalf of her tour members and received passage tickets, boarding passes and luggage labels. In accordance with her usual practice as tour leader, she held on to the tickets and presented them when the members of her party boarded the Stella Oceanis on 30 May.

7. It is necessary to say something more about the documents received by the respondent, both for the purpose of determining when a contract was made and also to identify relevant terms of that contract. First, however, it should be mentioned that the exchange order received by the respondent was not issued directly by Mary Rossi Travel. Rather, it along with other exchange orders was issued in Sydney to Mary Rossi Travel by J.M.A. Tours. There was evidence from the general manager of J.M.A. Tours that until 1980 or thereabouts that organization held stocks of Sun Line Cruise tickets and issued those tickets in Sydney. Thereafter tickets were not made available to J.M.A. Tours by Sun Line Cruises and exchange vouchers were issued to Mary Rossi Travel and, no doubt, to other travel agents. According to the general manager, "There was no other documentation required by Sun Line Cruises other than the exchange vouchers."

8. The brochure which was given to the respondent's wife in Sydney before the booking was made is a glossy magazine of more than thirty pages, with many photographs and details of places involved in the appellant's cruises. It has details of cabins and their cost together with other information of a general nature relating to ships, crews and activities. On the inside of the back cover of the brochure, under the heading "Things To Know Before You Go", is information about cancellations and refunds, alterations to the itinerary, port taxes, baggage liability and the like. The information commences with the words, "The attention of passengers is drawn to the General Conditions of transportation set out in the Passage Contract." Under the heading "Responsibility" is a statement that "(t)he transportation of passengers and baggage ... is governed by the terms and conditions printed on the Passenger Ticket Contract which may be inspected at any Sun Line office. Passenger's acceptance of that ticket constitutes agreement of those terms and conditions." As already mentioned, no tickets were available in Sydney and none was received by the respondent until after arrival in Greece. It is unclear whether there was a "Sun Line office" in Australia. In the course of argument, counsel for the respondent contended that the appellant carried on business at the office of J.M.A. Tours in Sydney. This was the first time that such a contention had been advanced in the course of the proceedings. In disputing its correctness, counsel for the appellant replied that no attempt was made to serve process on the appellant in Sydney and that leave was sought and obtained to effect service in Greece. The relationship between the appellant and J.M.A. Tours does not appear to have been explored before Yeldham J. His Honour proceeded on the basis that the appellant did not carry on business in Australia. We consider we must do the same. It is not in issue that Mrs. Rossi received the ticket on behalf of the respondent.

9. The relevant exchange order set out the name of the ship, sailing date, time of sailing and of embarkation, ports of departure and arrival, names and cabin number, fare charged, nationality of the respondent and his wife, their sex and the fact that they were adults, total passage fare, port taxes and the full amount paid. It contained the following statement:
"CANCELLATION OF CRUISES OR ALTERATION
OF ITINERARY
Article 2 of the Sun Line passage contract
specifies that in the event of the passenger
cancelling his passage or not using it for the
sailing for which it was issued, passage money
will NOT be refunded. ONLY IF space released is
resold will the passage money be refunded. Sun
Line reserves the right to cancel any cruise, in
which case the passage money will be refunded.
Sun Line also reserves the right to alter the
itinerary of any cruise if this should become
necessary or desireable (sic) for any reason.
Times of arrival and departure at the various
ports of call are given as a general guide, but
no guarantee can be given that they will be
adhered to. This order will be exchanged for a
Sun Line ticket when boarding vessel."
10. The passage ticket and contract is a document of several pages. It has on its face the words "Passage Ticket and Contract" together with the injunction "Each passenger should carefully examine this ticket, particularly the Conditions printed on pages 1, 2, 3 and 4 of its inside covers especially as regards limitation of liability, adjustment of fare rates etc." The ticket itself is a simple document, roughly comparable in form and content to the exchange order. There are very detailed "General Conditions" asserting that the terms and conditions referred to in "this ticket" and set forth on pp 1-4, "to which passenger expressly agrees", apply to and govern the relations between the passenger on the one hand and the carrier, master, vessel, owner, officers and crew and agents on the other. There is a notice: "The passenger's attention is particularly directed to the terms and limitations of this contract." The general conditions contain many references to "this passage contract". Clause 12(a) provides various exemptions from liability in respect of bodily injury and cl.12(f) limits any amount recoverable to US$5,000. Clause 13 reads in part:

"Notwithstanding anything to the contrary
contained herein, any action against the Carrier
must be brought only before the courts of Athens
Greece to the jurisdiction of which the Passenger
submits himself formally excluding the
jurisdiction of all and other court or courts of
any other country or countries which court or
courts otherwise would have been competent to
deal with such action."

Clause 16 contains this "acknowledgment":

"The passenger admits having read this passage
contract and agrees that its provisions
constitute the complete agreement between the
Carrier and said Passenger."

11. When Mary Rossi Travel paid to J.M.A. Tours a deposit on behalf of the respondent, there was an offer by the latter to secure a passage on a particular Sun Line cruise. Whether a contract of carriage thereupon came into existence is doubtful, although the invoice of 7 April 1983 is headed "Final Invoice And Confirmation". But the parties did enter into such a contract once payment of the balance was made and an exchange order was issued. In the ordinary course a ticket would, at that stage, have issued to the respondent. For reasons connected no doubt with the appellant's administration, no tickets were available in Sydney. Nevertheless the exchange order constituted a contract made between the parties whereby in consideration of money paid by the respondent the appellant allocated to him an identified cabin on an identified cruise. It is true that by the exchange order the appellant reserved "the right to cancel any cruise, in which case the passage money will be refunded". On the other hand, "in the event of the passenger cancelling his passage ... passage money will NOT be refunded. ONLY IF space released is resold will the passage money be refunded." These may have been terms of the contract made between passenger and shipper; they did not prevent a contract from coming into existence. Whether the right to "cancel" a cruise was one that could be exercised arbitrarily or whether it was subject to some implication of reasonableness it is unnecessary to dwell upon. But a right in one party to determine a contract, even though there has been no breach by the other party, is by no means uncommon: see Anson's Law of Contract, 26th ed. (1984), p 438. If a contract of carriage was not concluded before the respondent left Australia then it must follow that, notwithstanding that the entire passage money had been paid and that a particular cabin on a particular vessel had been allocated to him for a specified cruise and that although nothing remained for him to do except to present himself in Athens with the exchange order, the appellant came under no obligation to carry him until he did so. Such a construction of the circumstances flies in the face of common sense and cannot be accepted. When he left Australia the respondent had a contractual right to receive from the appellant on presentation of the exchange order in Athens a passage ticket which enabled him to board the vessel and occupy the specified cabin for the duration of the cruise subject only to such conditions as are found to form part of the contract.

12. MacRobertson Miller Airline Services v. Commissioner of State Taxation (W.A.) [1975] HCA 55; (1975) 133 CLR 125, relied upon by the appellant, is not an obstacle to the conclusion that a contract of carriage was concluded in Sydney. It is true that the members of the Court (Barwick C.J., Stephen and Jacobs JJ.) held that a completed ticket issued by an airline company was not chargeable with duty as an "agreement or any memorandum of an agreement" within the Stamp Act 1921 (W.A.). The only document issued by the airline operator was a ticket handed to the passenger at the time of payment. The ticket contained a coupon on which the seat allocation was indorsed when the ticket was presented before departure. Inside the cover of the ticket were quite lengthy "conditions of carriage" in which the operator reserved the right to abandon any flight, to cancel any ticket or booking and to refuse to carry any passenger without assigning any reason therefor.

13. Barwick C.J. regarded the issue of the ticket as "mainly a receipt for the payment of the fare" and payment on making a reservation "as no more than the prepayment of the fare payable for an actual carriage performed" (at p 134). His Honour did suggest a possible distinction between a ticket issued by a steamship company and one issued by an airline operator when he said (at p 135):

"The marked degree of certainty on the one hand
and of uncertainty on the other affords good
ground for distinguishing the inferences which,
apart from express provisions, might be drawn in
the one case though not in the other."

Barwick C.J.'s analysis was largely dictated by the conditions of carriage in which the airline operator reserved the right to abandon flights, to cancel bookings and to refuse to carry any passenger. His Honour said (at p 133):

"The exemption of the ticket in this case fully
occupies the whole area of possible obligation,
leaving no room for the existence of a contract
of carriage."

We pause to interpolate that this could not be said of the conditions set out in the ticket issued by the present appellant, even if those conditions formed part of the passage contract.

14. Jacobs J. adopted much the same approach as the Chief Justice but in addition took the view, as did Stephen J., that the completed ticket was merely an offer by the airline to carry the passenger, an offer which was accepted by the passenger's subsequent conduct. An offer in writing, which was accepted orally or by conduct, was not an agreement or memorandum of an agreement within the Act.

15. The ratio decidendi of the decision in MacRobertson Miller Airline Services lies in the proposition that there was no agreement or memorandum of agreement in writing, hence nothing that was chargeable with stamp duty. That does not determine the question whether, in the present case, there was a contract once the exchange order issued allocating a particular cabin to the respondent and with all remaining to be done being the exchange of the order for a ticket in Athens. For the reasons already given, there was such a contract.

16. Once it is accepted that there was a contract of carriage concluded between the parties in Sydney, there are formidable obstacles in the path of the appellant's argument that the conditions on the ticket and in particular the submission to Greek jurisdiction formed part of that contract. Yeldham J. was surely right in his view "that the brochure was not contractual in nature and did not enter into or form any part of the relevant contract of carriage". Essentially it was a document designed to interest would-be travellers in the appellant's cruises to various parts of the Mediterranean. It contained much that was of historical and geographical interest as well as displaying the facilities that were available to those participating in the cruises. It was advertising material, available to any one. Its reference under "Things To Know Before You Go" to the transportation of passengers being governed by the terms and conditions printed on the passenger ticket contract was informative but not contractual (cf. Hollingworth v. Southern Ferries Ltd. (The "Eagle") (1977) 2 Lloyd's Rep 70, at pp 75-77). And it was expressed in the context that the ticket contract "may be inspected at any Sun Line office". Such a statement was not particularly helpful if, as may have been the case, there was no Sun Line office in Australia.

17. Yeldham J. also concluded that the ticket "did not form any part of the contract" between the parties. And in that conclusion he was right. The ticket was issued after the contract was concluded. As just mentioned, the brochure was informative but not contractual; hence the appellant cannot rely upon it as a means of incorporating the terms and conditions on the ticket into the contract. The exchange order was part of the contract but it did not purport to incorporate the ticket. It is true that it made mention of "Article 2 of the Sun Line passage contract" but that was to make it clear that cancellation of passage was likely to involve forfeiture of the passage money. Nothing said on the exchange order operated to include, as part of the contract, terms and conditions on a ticket not provided to the respondent until after he had paid his fare in Sydney and had arrived in Greece to begin his Sun Line cruise. See generally The "Eagle"; Daly v. General Steam Navigation Co. Ltd. (The "Dragon") (1979) 1 Lloyd's Rep 257.

18. As earlier indicated, these conclusions as to when the contract was made and its terms have been arrived at on the basis of the evidence presently adduced and for the purpose of deciding whether a stay of proceedings is appropriate. Necessarily they are not final. They clarify the factual situation against which we have now to consider the important question of law raised by this appeal. The resolution of that question requires a consideration of the principles that should govern an application for a stay in the circumstances of a case such as this. Twenty years ago a somewhat similar question was considered by Gibbs J. in the Supreme Court of the Australian Capital Territory: Cope Allman (Australia) Ltd. v. Celermajer (1968) 11 FLR 488. In that case, the plaintiff company commenced proceedings in the Territory. The defendants lived in Sydney and the plaintiff carried on business in New South Wales but not in the Territory. The relevant Rules of Court provided that leave of the Court or a judge was not necessary for service of a writ of summons within the Commonwealth. The defendants sought a stay of the proceedings on the ground that the Court was not a convenient forum for the determination of the case. Gibbs J. (at p 494), applying the decision of this Court in Maritime Insurance Co. Ltd. v. Geelong Harbor Trust Commissioners [1908] HCA 37; (1908) 6 CLR 194, refused a stay, saying:

"Before I may decline to exercise jurisdiction and
deny to the plaintiff its prima facie right to
proceed in this Court I must be satisfied that
there would be something amounting to vexation,
oppression or injustice to the defendants. I am
not so satisfied."

See also Rutt v. Metropolitan Underwriters (Australasia) Ltd. (1929) SASR 426; Telford Panel & Engineering Works Pty. Ltd. v. Elder Smith Goldsbrough Mort Ltd. (1969) VR 193.

19. The law enunciated by this Court in Maritime Insurance and applied by Gibbs J. followed the law of England as it had developed in the later years of the nineteenth century. The rule was stated succinctly by Scott L.J. in a much cited passage of his judgment in St. Pierre v. South American Stores (Gath & Chaves) Ltd. (1936) 1 KB 382, at p 398:

" The true rule about a stay ... may I think be
stated thus: (1.) A mere balance of convenience
is not a sufficient ground for depriving a
plaintiff of the advantages of prosecuting his
action in an English Court if it is otherwise
properly brought. The right of access to the
King's Court must not be lightly refused.
(2.) In order to justify a stay two conditions
must be satisfied, one positive and the other
negative: (a) the defendant must satisfy the
court that the continuance of the action would
work an injustice because it would be oppressive
or vexatious to him or would be an abuse of the
process of the Court in some other way; and
(b) the stay must not cause an injustice to the
plaintiff. On both the burden of proof is on the
defendant. These propositions are, I think,
consistent with and supported by the following
cases: McHenry v. Lewis 22 ChD 397; Peruvian
Guano Co. v. Bockwoldt (1883) 23 ChD 225; Hyman
v. Helm (1883) 24 ChD 531; Thornton v. Thornton
11 PD 176; and Logan v. Bank of Scotland
(No. 2) (1906) 1 KB 141, 150, 151."

As so expressed, English law was in marked contrast to the doctrine of forum non conveniens which was well known to the law of Scotland and also to the courts of the United States of America.

20. The House of Lords had occasion to consider the question in 1973 in The Atlantic Star (1974) AC 436. The existing law was trenchantly criticized by Lord Reid (at p 453):

"They (the earlier authorities) support the
general proposition that a foreign plaintiff, who
can establish jurisdiction against a foreign
defendant by any method recognised by English
law, is entitled to pursue his action in the
English courts if he genuinely thinks that that
will be to his advantage and is not acting merely
vexatiously. Neither the parties nor the subject
matter of the action need have any connection
with England. There may be proceedings on the
same subject matter in a foreign court. It may
be a far more appropriate forum. The defendant
may have to suffer great expense and
inconvenience in coming here. In the end the
decisions of the English and foreign courts may
conflict. But nevertheless the plaintiff has a
right to obtain the decision of an English court.
He must not act vexatiously or oppressively or in
abuse of the process of the English court, but
these terms have been narrowly construed."

The effect of the decision was to give to the words "vexatious" and "oppressive" a more flexible or liberal application than was the case previously. In The Abidin Daver (1984) AC 398, at p 411, Lord Diplock described the essential change in the attitude of the English courts that had been achieved as a result of the successive decisions of the House of Lords in The Atlantic Star, MacShannon v. Rockware Glass Ltd. (1978) AC 795, and Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. (1984) AC 50 as being:

"that judicial chauvinism has been replaced by
judicial comity to an extent which I think ...
is, in the field of law with which this appeal is
concerned, indistinguishable from the Scottish
legal doctrine of forum non conveniens".

21. In MacShannon Lord Diplock (at pp 811-812), drawing on "the gist" of the speeches of the three members of the House of Lords who formed the majority in The Atlantic Star, restated the material part of the rule enunciated by Scott L.J. in St. Pierre as follows:

"'... In order to justify a stay two conditions
must be satisfied, one positive and the other
negative: (a) the defendant must satisfy the
court that there is another forum to whose
jurisdiction he is amenable in which justice can
be done between the parties at substantially less
inconvenience or expense, and (b) the stay must
not deprive the plaintiff of a legitimate
personal or juridical advantage which would be
available to him if he invoked the jurisdiction
of the English court'".

However, this statement, like other statements during the development of these principles since 1973, has now been overtaken. In Spiliada Lord Goff of Chieveley, in a speech concurred in by the other members of the House, made a definitive statement of the present law of England. His Lordship declared (at p 474) that in cases where jurisdiction has been founded as of right, that is, where the defendant has been served with proceedings within the jurisdiction, the defendant may now apply to the court to exercise its discretion to stay the proceedings on the ground which is usually called forum non conveniens. He cited with approval, as expressing the principle applicable in Scotland and now in England, the classic statement of Lord Kinnear in Sim v. Robinow (1892) 19 R. 665, at p 668:

"the plea can never be sustained unless the Court
is satisfied that there is some other tribunal,
having competent jurisdiction, in which the case
may be tried more suitably for the interests of
all the parties and for the ends of justice" (our
emphasis).

Lord Goff then cited the restatement of Lord Diplock in MacShannon (which we have set out above), describing it as no more than "a tentative statement at an early stage of a period of development" (at p 475). Clearly, the fact that a stay might deprive the plaintiff of a legitimate personal or juridical advantage cannot be decisive if regard is to be had to the interests of all the parties and the ends of justice. His Lordship (at pp 476-478) detailed the approach which a court should take in determining whether or not to grant a stay. He did so on the basis that, notwithstanding the use of the Latin, the object is to find, not the convenient, but the appropriate forum. The court must first look for the forum with which the action has the most real and substantial connection. The connecting factors in this regard will include matters of convenience and expense, the law governing the relevant transaction and the places where the parties respectively reside or carry on business. If the court concludes at that stage that there is some other available forum which prima facie is clearly or distinctly more appropriate for the trial of the action (the onus of proof resting with the defendant), it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted (the onus of proof in this regard resting with the plaintiff).

22. It was argued for the respondent that the English law as definitively stated by Lord Goff in Spiliada is not the law of New South Wales and that the relevant principle is that stated by Scott L.J. in St. Pierre and applied by this Court in Maritime Insurance. On the other hand, such decisions as there have been in the courts in Australia since The Atlantic Star was decided in 1973 appear to have followed the English development: for examples of cases involving a forum of another nation, see The Courageous Coloctronis (1979) WAR 19, In the Marriage of Takach (1980) 47 FLR 441 and Starr v. Ortega (unreported, Supreme Court of New South Wales, 9 June 1987); as to cases involving one Australian forum vis-a-vis another Australian forum, see Ranger Uranium Mines Pty. Ltd. v. B.T.R. Trading (Qld.) Pty. Ltd. (1985) 34 NTR 1 and Batchelor v. Dahlia Mining Co. Ltd. (unreported, Court of Appeal of the Supreme Court of New South Wales, 19 August 1986). In the present case, Yeldham J. and all the members of the Court of Appeal accepted, at least in part, the recent English decisions as embodying the law which is to be applied.

23. We agree with Lord Goff's approach in Spiliada. In our view the evolution of English law since The Atlantic Star cannot be ascribed to local considerations such as the incorporation of the United Kingdom into the European Economic Community. Rather, this century has witnessed such a transformation in communications and travel, coupled with a greater importance attaching to considerations of international comity as the nations of the world become more closely related to each other, as to render the St. Pierre principle, fashioned as it was in the nineteenth century, inappropriate to modern conditions. In this regard we agree with the views expressed by Kirby P. in the Court of Appeal. The St. Pierre principle places such a tight rein on the discretion of a court as to render it unable to deal justly with the problem of forum shopping, even in blatant cases. See Schuz, "Controlling Forum-Shopping: The Impact of MacShannon v. Rockware Glass Ltd" (1986) 35 International & Comparative Law Quarterly 374, at pp 377-378. And there is force in the comment of Pryles, "Liberalising the Rule on Staying Actions - Towards the Doctrine of Forum Non Conveniens" (1978) 52 Australian Law Journal 678, at p 684:

"The common law jurisdictional rules (that is, the
sufficiency of personal service within the
jurisdiction) are not entirely satisfactory and
can lead to the assumption of jurisdiction in the
most tenuous circumstances where there is really
no significant connection between the litigation
and the forum.... In these circumstances a
liberal rule as to the staying of actions is
required. It cuts down local parochialism as
regards judicial adjudication, and is consistent
with a spirit of international legal cohesion and
integration."

24. Furthermore, in an area of the law involving the courts of other countries it is expedient to preserve as much consistency as possible between the common law countries. The doctrine of forum non conveniens has long formed part of the law of Scotland and of the United States of America. It is now the law of England. It would seem to be the law of Canada: see, for example Antares Shipping Corp. v. The Ship "Capricorn" (1976) 65 DLR (3d) 105; Bonaventure Systems Inc. v. Royal Bank of Canada (1986) 32 DLR (4th) 721; cf. Rogers v. Bank of Montreal (1984) 4 DLR (4th) 507. We are unaware of any recent consideration of the question in the courts of New Zealand. In our view, the Spiliada approach should henceforth chart the course for the common law of Australia in relation to the inherent jurisdiction of a court to stay proceedings when there is a more appropriate forum in a foreign country.

25. Likewise, we think that the reasoning of Lord Goff (at pp 480-482 in Spiliada) in drawing attention to a marked resemblance between the principles applicable in forum non conveniens cases and those which govern the discretionary power of a court to permit service of proceedings on a defendant outside the jurisdiction, is relevant and applicable in Australia.

26. Yeldham J. took as his yardstick in determining the application for a stay the statement of Lord Diplock in MacShannon that we have cited. The decision of the House of Lords in Spiliada had not then been given. His Honour, having engaged in a balancing exercise involving the relevant factors, concluded that the appellant had failed to establish that if action was brought by the respondent in the Greek courts justice could be done between the parties at substantially less inconvenience and expense. He also found that, having regard to the language difficulties which the respondent and his witnesses would face in the course of a trial in Greece and the necessity to instruct lawyers in Greece, a stay would deprive the respondent of a legitimate personal or juridical advantage.

27. The Court of Appeal had the benefit of the decision in Spiliada. However, the majority (McHugh J.A., with whose reasons Glass J.A. agreed) appear to have attached determining significance to the question whether the respondent would suffer a legitimate personal or juridical disadvantage if the action were stayed. In taking this course, their Honours were following the MacShannon formulation. Having found that the contract of passage was made in New South Wales, and assuming that the conditions printed on the ticket were incorporated into it, McHugh J.A. concluded that the respondent would suffer a severe juridical disadvantage if he could not invoke the provisions of the Contracts Review Act 1980 (N.S.W.) for the purpose of invalidating the exclusionary and limitation provisions of the contract. Otherwise, the advantages and disadvantages of bringing the action in either forum were found to be reasonably evenly balanced. If the restrictive conditions did not form part of the contract, so that resort to the Act was unnecessary, the majority would have dismissed the appeal on the ground that Yeldham J. did not err in the exercise of his discretion to refuse a stay.

28. Our provisional conclusion that the contract was made in New South Wales and that it did not include the conditions set out on the passage ticket that was made available for the first time in Greece makes it unnecessary to consider in any detail the relevance that might otherwise have attached to the Contracts Review Act. It suffices to say that in our opinion there is no present basis upon which that factor could be brought into the inquiry undertaken to determine whether or not a stay should be granted. Section 16 of the Act sets out the periods during which an application for relief under the Act may be made. No application has been made and it is doubtful whether any application could be made without falling foul of that section. The point was not taken in the courts below. Note also s.17(3) which provides for the Act to apply only to contracts the proper law of which is, or but for a particular provision of the contract would be, New South Wales. We address the question of the proper law of the contract later in these reasons.

29. It remains to consider whether there was any miscarriage of the discretion exercised by Yeldham J. It is to be noted that in Spiliada Lord Templeman (at p 465) emphasized that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge and that an appellate court should be slow to interfere. It was unfortunate for Yeldham J. that he was required to determine the appellant's application at a time when the relevant law was still evolving in England; the House of Lords had heard argument in Spiliada but was yet to deliver its decision. As we have said, his Honour applied the law as stated by Lord Diplock in MacShannon (at p 812, which we have already cited). It bears repeating that this statement was described by Lord Goff in Spiliada "as a tentative statement at an early stage of a period of development" (at p 475). Lord Goff proceeded to state the basic principle in the following terms (at p 476):

"a stay will only be granted on the ground of
forum non conveniens where the court is satisfied
that there is some other available forum, having
competent jurisdiction, which is the appropriate
forum for the trial of the action, i.e. in which
the case may be tried more suitably for the
interests of all the parties and the ends of
justice".

There is clearly a difference of emphasis between the two statements: first, to focus the search on the appropriate forum supplies a broader frame of reference than a concentration on convenience and expense; secondly, the absence of any reference to a legitimate personal or juridical advantage in the Spiliada statement diminishes the prominence which that consideration is to have in the inquiry. Furthermore, what is to the advantage of one party will almost certainly be to the disadvantage of the other. A limitation provision may disadvantage a plaintiff if he is required to take proceedings elsewhere; equally, it may disadvantage the defendant if the action is not stayed. See Briggs, "Forum Non Conveniens - The Last Word?" (1987) Lloyd's Maritime & Commercial Law Quarterly 1, at pp 3-4. A plaintiff may expect to receive higher damages in one jurisdiction than another; is that a legitimate advantage? Cf. Castanho v. Brown & Root (U.K.) Ltd. (1981) AC 557 and Smith Kline & French Laboratories Ltd. v. Bloch (1983) 1 WLR 730; 2 All ER 72. In de Dampierre v. de Dampierre (1988) 1 AC 92, at p 110, Lord Goff said the conclusion reached in Spiliada was that:

"having regard to the underlying principle, the
court should not, as a general rule, be deterred
from granting a stay of proceedings simply
because the plaintiff in this country will be
deprived of such an advantage, provided that the
court is satisfied that substantial justice will
be done in the appropriate forum overseas".

30. In the circumstances, we do not think it would be right for us simply to endorse or reject the conclusion reached by Yeldham J. in the exercise of a discretion informed and guided by Lord Diplock's statement. We must therefore undertake the inquiry ourselves. We do so, however, bearing in mind that once the jurisdiction of the Supreme Court of New South Wales was properly invoked, the onus lay on the appellant to convince the Court that trial of the action in Greece was clearly more suitable. Recognition of this onus helps to avoid some of the difficulties adverted to by Professor Robertson in his article "Forum Non Conveniens in America and England: 'A Rather Fantastic Fiction'" (1987) 103 Law Quarterly Review, p 398. The respondent, having obtained leave under Pt.10, r.1(e) of the Rules of Court to serve the originating process on the appellant in Greece, must be credited with having been entitled to invoke the jurisdiction of the Supreme Court of New South Wales. There is no question of abuse of process. It is true that although he underwent considerable medical treatment in New South Wales in respect of the injuries he suffered in the accident, the respondent resides and practises his profession in Queensland. However, we do not consider that the respondent is to be disadvantaged by the fact that he is not a resident of New South Wales. He is an Australian resident and in all the circumstances he ought not be treated as a foreign plaintiff engaged in forum shopping.

31. The majority in the Court of Appeal placed weight on the terms of r.1(e), believing that the principle of forum non conveniens was not necessarily applicable in its entirety to an action brought in reliance on that rule. We think that any misgiving along those lines is misplaced. Indeed, we think that the converse is true. The discretion to grant leave to serve process outside the jurisdiction and so to subject a foreigner to the jurisdiction of a New South Wales court should be exercised with due regard to the principle of forum non conveniens. In Spiliada Lord Goff, referring to the discretion to grant leave under R.S.C., O.11, r.1(1)(f) for service of a writ out of the jurisdiction, stated the position correctly when he said (at p 480) that the question in such a case must be, at bottom, to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice. His Lordship then proceeded to identify the distinctions between such a case and the operation of the doctrine of forum non conveniens. One of these distinctions is material to a rule such as r.1(e), which in old-fashioned language may be described as founding an "exorbitant" jurisdiction, that is a jurisdiction which was described by Lord Diplock in Amin Rasheed, at p 65, as one:

"which, under general English conflict rules, an
English court would not recognise as possessed by
any foreign court in the absence of some treaty
providing for such recognition. Comity thus
dictates that the judicial discretion to grant
leave under this paragraph of R.S.C., Ord.11,
r.1(1) should be exercised with circumspection in
cases where there exists an alternative
forum...."

We should add that although the New South Wales Rules, unlike their English counterpart, do not expressly provide that leave shall not be granted "unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction" (R.S.C., O.11, r.4(2)), such an injunction is necessarily implicit in the discretionary power to grant leave. The special character of the leave in this case serves to diminish the weight that in other circumstances might attach to a plaintiff's choice of forum.

32. We begin our search for the appropriate forum by asking the question - with which forum has the action the most real and substantial connection? On our provisional finding the contract of carriage, in the course of the performance of which the alleged tort was committed, was made in New South Wales. That is certainly a material consideration but it must be remembered that the action is not an action for breach of contract. It is an action in tort for a wrong allegedly committed by an appellant which is incorporated in Greece and carries on business there, in respect of an accident which occurred in Greek waters on a Greek vessel in the course of a cruise which had its point both of departure and return in a Greek port. The significance of forming a view as to where the contract of carriage was made lies in the consequences for the content of that contract and in particular the place, if any, of cll.12 and 13 of the ticket in that contract. But the application for a stay was not founded upon the submission to Greek jurisdiction contained in cl.13. It was based on the doctrine of forum non conveniens; the existence of cl.13 was one of a number of matters upon which the appellant relied in support of its application. It seems to us also, although the proposition is contested by the respondent and notwithstanding our conclusion that the contract was made in New South Wales, that prima facie the proper law of the contract is the law of Greece. The test for discovering the proper law of the contract - that is, in general terms, "the substantive law of the country which the parties have chosen as that by which their mutual legally enforceable rights are to be ascertained" (per Lord Diplock in Amin Rasheed, at pp 61-62) - is well established. One looks for "the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connexion": Bonython v. Commonwealth of Australia [1950] UKPCHCA 3; (1951) AC 201, at p 219. The contract being provisionally found to be constituted by nothing more than the payment of the fare and the issuing of an exchange order, the printed conditions on the passage ticket not being incorporated in the contract, there is obviously no express identification of the proper law. The decisive consideration, in our view, is that the contract was to be wholly performed in Greece or in localities close to Greece. An additional factor in support of Greek law as the proper law of the contract is that passengers for the cruise provided by the appellant were drawn from the United States of America as well as Australia and no doubt from other countries. It would be extraordinary, as Kirby P. observed, if the obligations of the appellant towards its passengers were to be governed by a variety of different laws, depending on where the fare was paid and the contract concluded.

33. Other factors have been canvassed by counsel for the parties, mostly concerned with witnesses and questions of convenience and expense. We are content to accept the view of the majority of the Court of Appeal that they are fairly evenly balanced.

34. In our opinion, the factors that we have mentioned identify Greece as an available forum which is clearly more appropriate for the trial of the action. In that case, following the sequence of steps outlined by Lord PGoff in Spiliada (at p 478), we should favour granting a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. The onus of establishing the existence of circumstances having such an effect rests upon the respondent. It is at this point that we must consider any particular disadvantage personal to the respondent that he would suffer if he is required to litigate his claim in Greece. In answer to a suggestion by the respondent that currency restrictions might preclude him from removing the proceeds of any judgment obtained in Greece, the appellant is prepared to pay any such judgment in Australian dollars and to give security in New South Wales for that payment. This removes what might otherwise be a serious disadvantage to the respondent. There is the additional personal expense that the respondent will have to incur in litigating in Greece, but this is not a factor which carries much weight. Then there is the disadvantage arising from his lack of knowledge of the Greek language. He may have to rely on interpreters in order to communicate adequately with his lawyers and would need interpreters to understand the course of the proceedings. This is undoubtedly a handicap that the respondent would feel keenly and it deserves serious consideration. Furthermore, there is probably no countervailing disadvantage to the appellant if the action were to be heard in New South Wales. The appellant is a corporation of substance with wide international experience and for which a trial in New South Wales would be unlikely to pose a significant problem.

35. Notwithstanding these considerations, however, we are not persuaded that they are of sufficient weight to enable us to disregard the factors that so clearly point to Greece as the appropriate forum. Greece was the place of the alleged tort; it occurred on a Greek vessel in the course of the performance of a contract of carriage of which prima facie the proper law was the law of Greece. The appellant has no connection with New South Wales, its place of business being in Greece. The Contracts Review Act of New South Wales has ceased to be of any relevance. The necessity for the respondent to depend upon an interpreter, although distressing to him personally, cannot affect the quality of justice that he might expect to receive in a Greek court. The facts of the incident, so far as he can testify to them, are brief and uncomplicated and should not present him with any difficulty in instructing those who represent him. An increasing number of litigants in Australian courts must rely on interpreters and it would be a grave reflection on the administration of justice generally if it were thought to impose serious disadvantage.

36. We think it necessary to say something about the phrase "the ends of justice" which was used by Lord Kinnear in Sim v. Robinow and adopted by Lord Goff in Spiliada. The relevant inquiry does not require the court to embark at the outset upon an investigation of the relevant law that would be applied if the action were to be determined in some other court. For instance, in the present case the Court is not directly concerned with the likely fate of an argument in a Greek court that the respondent is bound by the terms of cl.12 of the ticket. The expression "the interests of all the parties and the ends of justice" is a composite one. This is best understood and given effect to by recognizing that the initial onus lies on the appellant (in this case) to demonstrate that some forum other than New South Wales is more appropriate because it is the forum with which the action has the most real and substantial connection. The substantive law to be applied in either forum is not, in this regard, a material consideration. If that onus is satisfied, it is then for the respondent (in this case) to persuade the Court that the interests of the parties and the ends of justice will nevertheless best be served by refusing a stay. He might do so by showing that he will be deprived of a "legitimate personal or juridical advantage" in the alternative forum (cf. MacShannon, at p 812). He might show (in the present case for instance) that if he brought the action in Greece the ticket is likely to be treated as part of the contract of carriage and that there is no power in a Greek court to override a provision such as cl.12. Or he might point to the risk that a foreign litigant will not get justice in such a court: The Abidin Daver, at p 411. In the absence of any evidence on these matters, they cannot supply any sound basis for a conclusion that the interests of all the parties and the ends of justice will not be best served by an order which results in the action being heard in that forum with which it has the most real and substantial connection.

37. Although we have from time to time referred to the court's discretion to stay proceedings on the ground of forum non conveniens, the expression is apt to mislead unless properly understood. The discretion is to decline to exercise the jurisdiction vested in the court. If the party seeking a stay fails to satisfy the court that some other forum is more appropriate, that is the end of the matter. In making that assessment, the court conducts the sort of inquiry we have indicated. If the court is satisfied that an alternative forum is more appropriate, it will grant the stay unless persuaded that the consequences for the plaintiff are such that a stay should be refused. Again, that assessment will depend upon the sort of considerations to which we have referred. The discretion may be exercised only in accordance with and within the limits of these principles.

38. Having regard to the interests of both the parties and to the ends of justice, we conclude that the proceedings in the Supreme Court of New South Wales should be stayed.

39. Since preparing these reasons for judgment we have had the opportunity of reading the reasons prepared by the other members of the Court. It is apparent that the decision of the Court, while resolving the immediate dispute between the parties, does not yield a precise and authoritative statement of the principles that should be applied in dealing with an application to stay proceedings. That statement must await another day.

40. We would allow the appeal.

BRENNAN J: The plaintiff, Dr Fay, and his wife were passengers aboard the M.S. "Stella Oceanis", a Greek vessel, cruising between the islands of Samos and Ikaria in Greek waters on 2 June 1983 when an accident happened. A shot gun exploded during a shipboard entertainment of trapshooting and Dr Fay was severely injured. He commenced proceedings in the Supreme Court of New South Wales on 10 September 1985 by issuing a statement of claim against the defendant, a Greek corporation (and a subsidiary of a Delaware corporation) which owns, operates, equips and crews the M.S. "Stella Oceanis". The plaintiff alleged that his injuries were caused by negligence on the part of the defendant, its servants and agents.

2. He further alleged that he "suffered loss and damage partly in the State of New South Wales", an allegation of a fact which attracted the application of Pt 10 r.1(1)(e) of the Rules of the Supreme Court as it then stood. That sub-rule provided:

"(1) Subject to rule 2, originating process may be
served outside the State in the following cases -
...
(e) where the proceedings are founded on, or are
for the recovery of, damage suffered wholly or
partly in the State caused by a tortious act or
omission wherever occurring".

Pursuant to r.2(1), the plaintiff obtained ex parte an order giving him leave to serve the originating statement of claim upon the defendant at its principal place of business in Athens in the Republic of Greece. The statement of claim was served accordingly and the defendant entered a conditional appearance. It then moved for an order that the statement of claim be set aside or struck out on the ground that the Court had no jurisdiction or for an order that service of the statement of claim be set aside or for an order that the proceedings be stayed. Yeldham J. dismissed the defendant's notice of motion and his decision was affirmed on appeal by a majority of the Court of Appeal (Glass and McHugh JJ.A., Kirby P. dissenting). On appeal to this Court, the defendant put at the forefront of its argument the proposition that the Supreme Court has jurisdiction to stay or dismiss the action on the ground of forum non conveniens and the defendant sought an order in exercise of that jurisdiction. A similar order was made by the Supreme Court of the State of New York in proceedings earlier commenced in that Court by the plaintiff against the defendant, the courts of Greece being considered to be the appropriate forum. Before examining the relevant principles of private international law as they have developed in this country, the material facts should be more fully stated.

3. Dr and Mrs Fay, who live in Nerang in Queensland, engaged the services of a travel agency conducted by Mrs Fay's mother, Mrs Mary Rossi, to arrange their overseas trip. The offices of Mary Rossi Travel are in Sydney. Mary Rossi Travel furnished a brochure relating to the cruise to Dr and Mrs Fay, and subsequently made a booking on their behalf with JMA Tours, another Sydney travel agency, which is the Australian agent for Sun Line Cruises ("Sun Line"). That firm or enterprise consists of the defendant and another corporation both of which operate ships which cruise in Greek waters. Mrs Mary Rossi was to lead a party of clients including the Fays on the cruise of the "Stella Oceanis". Mary Rossi Travel, being put in funds by Dr and Mrs Fay, paid JMA Tours in Sydney the fares payable on their behalf and JMA Tours issued in the names of Dr and Mrs Fay a document described as an "Exchange Order". The Exchange Order was on a printed form which provided spaces in which the issuing office enters particulars of the intending passenger, the ship and cruise which has been booked, the intending passenger's cabin and berth, and the fare and port taxes paid. The Exchange Order bore the following endorsement:

"CANCELLATION OF CRUISES OR ALTERATION OF
ITINERARY
Article 2 of the Sun Line passage contract
specifies that in the event of the passenger
cancelling his passage or not using it for the
sailing for which it was issued, passage money
will NOT be refunded. ONLY IF space released is
resold will the passage money be refunded. Sun
Line reserves the right to cancel any cruise, in
which case the passage money will be refunded.
Sun Line also reserves the right to alter the
itinerary of any cruise if this should become
necessary or desirable for any reason. Times of
arrival and departure at the various ports of
call are given as a general guide, but no
guarantee can be given that they will be adhered
to. This order will be exchanged for a Sun Line
ticket when boarding vessel." (Emphasis added.)

4. In fact Mrs Rossi exchanged the Exchange Orders issued to her touring party for tickets at the Sun Line office in Athens on 28 May. She retained the tickets and attended to the formalities on behalf of her party when they boarded the "Stella Oceanis" at Piraeus on 30 May 1983. The tickets issued by the defendant were in the form of a booklet containing coupons one of which had to be surrendered on boarding and one of which the passenger or his agent retained. Mrs Rossi destroyed the plaintiff's coupon a day or two after boarding. On its front cover the ticket was described as "Passage Ticket and Contract". Amongst other printing on its front cover this notice appeared:

"Each passenger should carefully examine this
ticket, particularly the Conditions printed on
pages 1,2,3 and 4 of its inside covers especially
as regards limitation of liability, adjustment of
fare rates etc."

Each coupon inside the cover of the ticket bore the printed notice:

" The Conditions printed on pages 1,2,3 and 4 of
the cover of this ticket form part of this
contract."

5. Clauses 12 and 13 of the printed conditions are to be found on pp 3 and 4 of four closely printed pages of "general conditions". Clause 12 contains stipulations as to exemption from and limitation of liability for damages. Clause 13 contains provisions relating to notice and time limitations for commencing proceedings. Clause 13 also contains the following:

"13 Notwithstanding anything to the contrary
contained herein, any action against the Carrier
must be brought only before the courts of Athens
Greece to the jurisdiction of which the Passenger
submits himself formally excluding the
jurisdiction of all and other court or courts of
any other country or countries which court or
courts otherwise would have been competent to
deal with such action". (Emphasis added.)

6. Dr Fay knew nothing of these conditions. He left all arrangements to Mrs Rossi and her travel agency. If Dr Fay had examined closely the brochure which he and Mrs Fay had been given before they decided to book their passage, he would have found a declaration that the transportation of passengers is "governed by the terms and conditions printed on the Passenger Ticket Contract which may be inspected at any Sun Line office". The brochure stated that JMA Tours in Sydney was a Sun Line office. Dr Fay had not read this part of the brochure and, in any event, no copy of the passenger ticket contract was available at JMA Tours. Dr Fay was also unaware of the conditions printed in cll.12 and 13 of the ticket. Whether his agent Mrs Rossi knew of those conditions does not appear. She filed an affidavit which was silent on that point and she was not cross-examined.

7. As this appeal is brought from a judgment of the Supreme Court of New South Wales, the issues arising on this appeal fall to be determined by the law administered by that Court. That law is, of course, the law of New South Wales and, in particular, the private international law of that State. Before identifying the issues for determination, it is convenient to mention some problems with which this appeal is not concerned. First, the appeal is not concerned with the recognition or enforcement in Greece or elsewhere outside Australia of any judgment which might be entered in this action. Those are matters for the law of the place where recognition or enforcement might be sought at some later time. The Supreme Court of New South Wales has no power to compel recognition or enforcement of its judgments by the courts of another country. Next, the defendant does not now challenge the effectiveness of the service of the originating statement of claim pursuant to an order giving leave to serve the originating process on the defendant in Greece under Pt 10 rr.1(1)(e) and 2(1). The validity of those rules is not now in question (cf. Flaherty v. Girgis (1987) 162 CLR 574; (1985) 4 NSWLR 248) and no challenge is made to the sufficiency of the service to satisfy the terms of the order giving leave to serve. Nor is it in dispute that, subject to service, the Supreme Court has jurisdiction to entertain an action for damages for personal injury tortiously inflicted outside New South Wales when certain qualifications, which we need not now consider, are met. The substantial question on this appeal is, as it was in the Courts below, whether the Supreme Court should order that the action be stayed or dismissed on the ground either that the plaintiff is bound by an agreement that "any action against the Carrier must be brought only before the courts of Athens Greece" or that, having regard to all the circumstances of the case, Greece is the appropriate forum for the litigation of the plaintiff's claim and the Supreme Court of New South Wales should dismiss or stay the action in that Court in the exercise of a discretion, leaving the plaintiff to pursue his remedy (if any) in Greece. These grounds require separate consideration.
Exclusive foreign jurisdiction clause

8. Where the parties to a contract agree that the courts of a foreign country shall have exclusive jurisdiction to decide disputes arising under the contract or out of its performance, the courts of this country regard that agreement as a submission of such disputes to arbitration and will, in the absence of countervailing reasons, stay proceedings brought here to decide those disputes: Huddart Parker Ltd v. The Ship Mill Hill [1950] HCA 43; (1950) 81 CLR 502, at p 508; Compagnie des Messageries Maritimes v. Wilson [1954] HCA 62; (1954) 94 CLR 577, at pp 582,585,589-591. But when a clause purporting to confer exclusive jurisdiction on the courts of a foreign country to determine claims arising under or out of the performance of a contract of carriage is found in a ticket issued to a passenger who, in this country, has paid his fare for carriage on a ship, aircraft, or vehicle operated by the defendant, a preliminary question must be decided: is the clause a term of the contract of carriage? To answer that question, it is necessary to decide when the contract of carriage is made and by reference to what system of law are its terms to be ascertained. The payment of the fare is not necessarily the making of the contract: it may be a pre-payment of the consideration payable under a contract of carriage yet to be made (that is the character which the defendant's submission would assign to the payment made on the plaintiff's behalf to JMA Tours in Sydney) or it may be payment of the consideration payable under a contract of carriage thereupon made (the plaintiff's submission) or it may be the payment of the price of an option to require the carrier to carry the passenger, perhaps subject to certain conditions.

9. It may be thought that the terms of a contract should be ascertained by reference to its proper law, that is, the system of law by reference to which the contract is made or the system of law with which the transaction has its closest and most real connection: Bonython v. Commonwealth of Australia [1950] UKPCHCA 3; (1951) AC 201, at p 219. A submission to the exclusive jurisdiction of the tribunals of a particular country is an indicium of the parties' intention that the law of that country is to be the proper law of their contract: Compagnie d'Armement Maritime S.A. v. Compagnie Tunisienne de Navigation S.A. (1971) AC 572. And so, in the present case, if the supposed submission to the exclusive jurisdiction of the Athenian courts is in truth a term of the contract of carriage governing the liability of the defendant for the plaintiff's injury, there is a significant indicium that Greek law is the proper law of that contract. There are other indicia tending towards the same conclusion: the flag of the M.S. "Stella Oceanis", the domicil of the ship's owner and operator and the fact that the ship was to sail from and return to Piraeus and cruise in Greek waters are factors tending to a finding that Greek law is the proper law of the contract of carriage. But, for the purpose of determining whether the contract of carriage was made when the fares were paid to JMA Tours in New South Wales and whether that contract contained the exclusive foreign jurisdiction clause set out in cl.13 of the ticket, the system of law by reference to which those questions must be answered cannot be identified by assuming that the contract contained the clause. The question whether a contract has been made depends on whether there has been a consensus ad idem and the terms of the contract, if made, are the subject of that consensus. At all events, those are the issues which an Australian court necessarily addresses when it seeks to determine the existence of what the municipal law of this country classifies as a contract. Classification is, of course, a matter for the law of the forum. In deciding whether a contract has been made, the court has regard to all the circumstances of the case including any foreign system of law which the parties have incorporated into their communications, but it refers to the municipal law to determine whether, in those circumstances, the parties reached a consensus ad idem and what the consensus was: cf. Mackender v. Feldia A.G. (1967) 2 QB 590, per Diplock L.J. at pp 602-603. There is no system other than the municipal law to which reference can be made for the purposes of answering the preliminary questions whether a contract has been made and its terms. Mr D.F. Libling "Formation of International Contracts" (1979) 42 Modern Law Review 169 (an article to which Gaudron J. has drawn my attention) discusses the reasons why it is inappropriate to determine those questions by reference to the so-called putative proper law of a supposed contract.

10. The first step in determining whether the contract of carriage contains the exclusive foreign jurisdiction clause set out in cl.13 of the ticket is to determine whether the contract of carriage was entered into when Mary Rossi Travel (as agent for the plaintiff) paid the plaintiff's fare to JMA Tours in Sydney (as agent for the defendant). If, as the defendant submits as one limb of its argument, no contract of carriage was made in Sydney, the contract of carriage must have been made in Greece at or after the time when the ticket was issued to Mrs Rossi as the plaintiff's agent. The defendant's submission that no contract was made in Sydney is based on the endorsement on the exchange order which reserved to "Sun Line" the "right to cancel any cruise". The reservation of that right, it is said, makes any promise of carriage illusory and thus denies the existence of a contract of carriage.

11. In MacRobertson Miller Airline Services v. Commissioner of State Taxation (W.A.) [1975] HCA 55; (1975) 133 CLR 125, the terms printed on an airline ticket, which had been issued on payment of the fare, reserved to the carrier the right to abandon any flight, to cancel any booking and to refuse to carry the passenger. It was held that the ticket was not liable to stamp duty as an agreement or memorandum of agreement. Barwick C.J. said (at p 133):

"The exemption of the ticket in this case fully
occupies the whole area of possible obligation,
leaving no room for the existence of a contract
of carriage."

Jacobs J. (at p 148) also regarded the exemption clause as showing that the carrier "undertakes no executory obligation which creates rights in an obligee". Stephen J. did not find it necessary to reach that conclusion (at p 140). The defendant submits that the exemption clause in the Exchange Order is comparable with the clauses in the ticket in MacRobertson Miller. As the exemption clause in the Exchange Order is significantly different from the exemption clauses in the ticket in MacRobertson Miller, it is not necessary to analyse the construction which Barwick C.J. and Jacobs J. placed on those clauses in that case. The exemption endorsed on the Exchange Order is not so wide as to preclude the existence of any contractual obligation on the part of the defendant when the Exchange Order was issued. To the contrary, the Exchange Order contains promises to refund the fare if the cruise is cancelled and to exchange the Exchange Order for a "Sun Line ticket when boarding vessel" if the cruise is to proceed. So far as appears from the terms of the Exchange Order, if the cruise proceeds, the passenger is contractually entitled on presentation of the Exchange Order to a ticket entitling him to be carried. The defendant reserves no right to cancel any ticket or booking or to refuse to carry the passenger named in the Exchange Order if the booked cruise proceeds. True it is that cl.3 of the Sun Line ticket purports to reserve those rights but, if the contract is made when the fare is paid, the ticket cannot alter the parties' contractual rights and obligations. If it had been intended that no contract should come into existence before the issue of the ticket "when boarding vessel", no consideration would have moved from the defendant to support the defendant's right (as asserted in the Exchange Order) to refuse to refund the passage money in the event of a passenger cancelling his passage. The proposition that no contract was made when the Exchange Order was issued in Sydney must be rejected. Next it is necessary to determine whether the contract then made was the contract of carriage and, if so, whether it contained the exclusive foreign jurisdiction clause.

12. The contract made when the Exchange Order was issued obliged the defendant to issue a ticket in exchange for the Exchange Order when the passenger was boarding the vessel. A ticket containing conditions of carriage is ordinarily treated as an offer by the carrier to carry on those conditions, no contract coming into existence until the offer is accepted by the passenger. This was a ground assigned by each of the judgments in MacRobertson Miller for holding the ticket not to be an agreement or a memorandum of agreement. Their Honours held that there was no contract of carriage until some time after the ticket had been issued - until the time when the passenger was provided with a seat (per Barwick C.J. at p 134) or when the passenger had intimated his acceptance of the ticket and its conditions or after the passing of a reasonable time during which the passenger has had a reasonable opportunity of reading the ticket and its conditions (per Stephen J. at p 139) or when the passenger presents the ticket and embarks on the carriage (per Jacobs J. at p 146). As Stephen J. said (at p 137):

" The conventional analysis of the formation of
contracts for the carriage of passengers in those
somewhat more leisurely transactions which
involve the issue of a ticket in return for
payment of a fare and the subsequent performance
of the contract by the act of transportation, is
to regard the ticket as the offer, the contract
being made upon acceptance of that offer by the
passenger".

13. But the conventional analysis cannot be applied to a ticket which the defendant is obliged to issue in exchange for an Exchange Order when a passenger is boarding a vessel. It can hardly have been the parties' intention at the time when the passenger pays his fare that the ticket to be given him on boarding should be a mere offer of carriage. Much less could it have been their intention that the offer might contain exemption clauses which were unknown to the passenger when the original contract was made. The arrangements contemplated at the time of the issue of the Exchange Order for exchanging that document for a ticket cannot reasonably support the hypothesis that when issued the ticket might be a mere offer containing exemption clauses which should bind the plaintiff only upon subsequent acceptance. Apart from the insufficiency of opportunity for the passenger who is boarding a vessel to read the conditions printed on the ticket and to elect whether to accept them, the election could be made only after travelling to Greece and obtaining the ticket, and the terms of the Exchange Order would require a passenger who then elected to decline the offer to forfeit the fare already paid. The better analysis of the transaction is that the defendant was bound to issue a ticket in exchange for the Exchange Order in performance of a contract of carriage already made, but the defendant was given no right to introduce new conditions of carriage by printing them on the ticket. The payment of the fare may rightly be regarded as the price of an option to acquire a ticket, but the option was not to acquire a mere piece of paper. It was an option to acquire a voucher or certificate of entitlement to be carried on terms already agreed - not on terms which the parties had yet to agree on.

14. It was too late after the original contract was made to add conditions which were not incorporated in it. The inclusion of cl.13 on the ticket could not alter the terms of a contract already made: Olley v. Marlborough Court (1949) 1 KB 532. A condition printed on a ticket is ineffective to alter a contract of carriage if the ticket is issued after the contract is made: Daly v. General Steam Navigation Co.Ltd. (The "Dragon") (1979) 1 Lloyd's Rep 257, at p 262. Perhaps the defendant expected that the contract made when the Exchange Order was issued would contain all the terms and conditions which, according to the brochure given to Dr Fay, were printed on "the Passenger Ticket Contract which may be inspected at any Sun Line office". But, as we shall see, that expectation was not fulfilled, and not simply because no copy of the Passenger Ticket Contract was available at JMA Tours in Sydney.

15. If a passenger signs and thereby binds himself to the terms of a contract of carriage containing a clause exempting the carrier from liability for loss arising out of the carriage, it is immaterial that the passenger did not trouble to discover the contents of the contract. But where an exemption clause is contained in a ticket or other document intended by the carrier to contain the terms of carriage, yet the other party is not in fact aware when the contract is made that an exemption clause is intended to be a term of the contract, the carrier cannot rely on that clause unless, at the time of the contract, the carrier had done all that was reasonably necessary to bring the exemption clause to the passenger's notice: Hood v. Anchor Line (Henderson Brothers) Ltd. [1918] UKHL 2; (1918) AC 837, at pp 842, 844; McCutcheon v. David Macbrayne Ltd. [1964] UKHL 7; (1964) 1 WLR 125, at p 129; [1964] UKHL 7; (1964) 1 All ER 430, at p 433; Thornton v. Shoe Lane Parking Ltd. (1971) 2 QB 163, per Lord Denning PM.R. at pp 169-170, and per Megaw L.J. at pp 172-173. In differing circumstances, different steps may be needed to bring an exemption clause to a passenger's notice, especially if the clause is an unusual one. In the present case, the only step which the defendant took to bring the exclusive foreign jurisdiction clause to the plaintiff's notice before the fare was paid was the note in the brochure that the conditions of carriage were printed in the (unavailable) Passenger Ticket Contract. In Hollingworth v. Southern Ferries Ltd. (The "Eagle") (1977) 2 Lloyd's Rep 70, it was held that a mere statement in a carrier's brochure that the carrier contracted on its conditions of carriage was not enough to make those conditions terms of a contract of carriage subsequently made with an intending passenger who had read the brochure.

16. The Exchange Order mentions "the Sun Line passage contract" but gives particulars only of Article 2 of that document. It does not bring to the notice of the passenger any exclusive foreign jurisdiction clause. As Dr Fay was unaware of that clause, it did not become incorporated into the contract made when the Exchange Order was issued. In The "Dragon" (at p 262) Brandon J. (as he then was) pointed out that, if the carrier's conditions are not incorporated into the contract of carriage when it is made, the carrier cannot subsequently, "by issuing a ticket containing the conditions concerned, however clearly referred to in it, introduce such conditions into the contract when it was not subject to them originally".

17. As the contract of carriage was made when the Exchange Order was issued and as the exclusive jurisdiction clause contained in cl.13 of the ticket was not then known to Dr Fay and as insufficient was done to bring such a clause to his attention, that clause was not incorporated into the contract of carriage and could not subsequently be incorporated by insertion in the ticket issued pursuant to the original contract. This conclusion differs from the conclusion at which their Honours arrived in the Courts below. It will not, I hope, be thought discourteous if I refrain from analysing the differing reasons advanced by their Honours and merely point out that the two factors which lead me to reject the application to this case of the "conventional analysis" of the ticket cases is that the ticket in this case was issued in performance of an antecedent contract and that, if the ticket were a mere offer, a passenger's election to decline carriage subject to an exemption clause could be exercised only after travelling to Greece and only if the fare were forfeited.

18. This conclusion makes it unnecessary to deal with the Contracts Review Act 1980 (N.S.W.) at this stage of the proceedings. There is no need to invoke the jurisdiction under that Act in order to exclude the operation of the exclusive foreign jurisdiction clause. It is sufficient for the moment to hold that the exclusive foreign jurisdiction clause as printed in cl.13 of the ticket was not incorporated in the contract of carriage and presents no obstacle to the exercise by the Supreme Court of New South Wales of the jurisdiction which the plaintiff has invoked by commencing proceedings for damages.

19. If, contrary to the conclusion I have expressed, the exclusive foreign jurisdiction clause had been a term of the contract of carriage, it would have been necessary to determine whether there were circumstances which warranted a refusal of the stay to which the defendant would have been entitled prima facie: see The Mill Hill, at pp 508-509. It may have been necessary to consider whether there was any reason why the guidelines affecting the exercise of the court's discretion which the Court of Appeal laid down in Aratra Potato Co.Ltd. v. Egyptian Navigation Co. (The "El Amria") (1981) 2 Lloyd's Rep 119 should not be adopted here. Those guidelines have been referred to without dissent in the House of Lords (The "Sennar" (No.2) (1985) 1 Lloyd's Rep 521, at p 527) and they are consistent with the broad approach espoused by Dixon J. in The Mill Hill (at p 509). But, as pointed out by Stephenson L.J. in The "El Amria" (at p 129) cases of a stay to enforce an exclusive foreign jurisdiction clause should not be assimilated to cases where, in England, a stay is sought on the principle forum non conveniens: cf. Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. (1984) AC 50, at p 72; Spiliada Maritime Corporation v. Cansulex Ltd. (1987) 1 AC 460, at p 480. A case where the plaintiff seeks the exercise of a discretion to refuse to give effect to a contractual stipulation that a nominated court should have exclusive jurisdiction requires justification of a different order from that required in a case where the plaintiff has simply chosen to sue in one forum rather than another, both being available to him. However, as the defendant has not established that the exclusive foreign jurisdiction clause set out in cl.13 on the ticket was a term of the contract of carriage, I turn to the alternative ground advanced by the defendant for seeking a stay, namely, that a Greek court is, and the Supreme Court of New South Wales is not, the appropriate forum for deciding the plaintiff's claim.

20. This ground must be approached on a different footing from that adopted by the majority in the Court of Appeal. There it was assumed that the exclusive foreign jurisdiction clause bound the plaintiff but, as he would be deprived of the prospect of relief under the Contracts Review Act if effect were given to the clause, it would be wrong to give effect to it. In my opinion, had the plaintiff been bound by the clause, there would have been no reason why the relief to which the plaintiff was entitled should not have been determined by the Athenian courts. Before a court can refuse to enforce a contractual stipulation in order to allow a plaintiff a right to sue which he has bargained away the court must have substantial grounds prevailing over what Dixon J. in The Mill Hill (at p 509) called "a strong bias in favour of maintaining the special bargain". Moreover, if the exclusive foreign jurisdiction clause had been part of the contract of carriage, Greek law would probably have been held to be the proper law of the contract and the contract would thus have been outside the reach of the Contracts Review Act: see s.17(3)(a). However, as that clause was not part of the contract, there was no contractual stipulation precluding the plaintiff's commencement of the proceedings in the Supreme Court of New South Wales. The defendant therefore bears the onus of showing that it is a proper case for the exercise of a discretion to stay.
Forum non conveniens

21. The accident happened in Greek waters on board a Greek ship during a cruise which set out from Piraeus. It was to end in the same Greek port. The witnesses of the accident live in Greece and America. The witnesses who would testify as to the plaintiff's injuries, treatment and resultant loss live in Greece and Australia. The plaintiff finds the Supreme Court of New South Wales a forum more convenient for him personally than the courts of Greece, partly because of the difficulty in preparing his case in Greece and partly because of the language of the Greek courts. Similar considerations no doubt make the Greek courts more convenient for the defendant personally. Greece was the country in which the contract of carriage was to be performed but New South Wales was the State in which the contract was made. What principles should be applied in deciding whether, in these circumstances, the Supreme Court of New South Wales should decline to proceed in the action?

22. The principles to be applied in exercising a general discretion to stay have undergone a transformation in England and the defendant submits that the law of this country should follow suit. Unless we are now to follow the change judicially wrought in the English law, the law which we would apply is the law which used to be applied in England before The Atlantic Star (1974) A.C.436, the first of the cases which resulted in the jettisoning of the established principles. A brief statement of the established law can be extracted from the judgment of Gibbs J. in Cope Allman (Australia) Ltd. v. Celermajer (1968) 11 FLR 488, at pp 492-493:

" However, the question that I am bound to pose
to myself is not simply, 'Which is the more
convenient forum?' The principles to be applied
in such a case as this were laid down by the High
Court in Maritime Insurance Co.Ltd. v. Geelong
Harbor Trust Commissioners ((1908) [1908] HCA 37; 6 CLR 194).
At p 198 Sir Samuel Griffith, whose judgment was
concurred in by the other members of the court,
said: 'I will read one or two passages from the
judgment of the President, Sir Gorell Barnes, in
which the other members of the Court of Appeal
concurred, in Logan v. Bank of Scotland (No.2)
((1906) 1 KB 141, at p 150). He said: "The
court should, on the one hand, see clearly that
in stopping an action it does not do injustice,
and, on the other hand, I think the court ought
to interfere whenever there is such vexation and
oppression that the defendant who objects to the
exercise of the jurisdiction would be subjected
to such injustice" (I interpolate there the words
supplied by Warrington J. in Egbert v. Short
((1907) 2 Ch 205, at p 213)) "in defending the
action that he ought not to be sued in the court
in which the action is brought, to which
injustice he would not be subjected if the action
were brought in another accessible and competent
court".'"

The best-known statement of the established principles is to be found in the judgment of Scott L.J. in St. Pierre v. South American Stores (Gath & Chaves), Ld. (1936) 1 KB 382, at p 398. There, speaking of the statutory power to stay conferred by s.41 of the Supreme Court of Judicature (Consolidation) Act 1925 (U.K.) his Lordship said:

" The true rule about a stay under s. 41, so far
as relevant to this case, may I think be stated
thus: (1.) A mere balance of convenience is not a
sufficient ground for depriving a plaintiff of
the advantages of prosecuting his action in an
English Court if it is otherwise properly
brought. The right of access to the King's Court
must not be lightly refused. (2.) In order to
justify a stay two conditions must be satisfied,
one positive and the other negative: (a) the
defendant must satisfy the Court that the
continuance of the action would work an injustice
because it would be oppressive or vexatious to
him or would be an abuse of the process of the
Court in some other way; and (b) the stay must
not cause an injustice to the plaintiff. On both
the burden of proof is on the defendant. These
propositions are, I think, consistent with and
supported by the following cases: McHenry v.
Lewis (22 ChD 397); Peruvian Guano Co. v.
Bockwoldt ((1883) 23 ChD 225); Hyman v. Helm
((1883) 24 ChD 531); Thornton v. Thornton (11
PD 176); and Logan v. Bank of Scotland (No. 2)."

Unless a defendant is able to show oppression, vexation or other abuse of process, the first condition is unsatisfied and a stay is refused. A defendant does not discharge the burden of proof merely by showing that the balance of convenience favours litigation in some other forum. The policy of the law is to allow "any plaintiff bona fide seeking relief to have unrestricted access to the seat of judgment" (per Lord Simon of Glaisdale in The Atlantic Star, at p 473) and that is a policy which prevails unless oppression, vexation or other abuse of process is shown.

23. The grounds on which the court is justified in refusing to exercise its jurisdiction when it is regularly invoked are and, in my opinion, should be grave and narrowly confined. The construction placed on the words "oppressive or vexatious" gave Scott L.J's formulation of the principle a narrow and precise operation, as Lord Kilbrandon pointed out in The Atlantic Star (at p 477):

"There are plenty of earlier examples of the use
of the words 'oppressive' and 'vexatious' in this
context. But the words have, at all events
today, certain shades of meaning which make it
difficult to accept an uncritical construction as
appropriate to all circumstances in which
guidelines - and they are nothing more - may be
required. 'Oppressive' is an adjective which
ought to be, and today normally is, confined to
deliberate acts of moral, though not necessarily
legal, delinquency, such as an unfair abuse of
power by the stronger party in order that a
weaker party may be put in difficulties in
obtaining his just rights. 'Vexatious' today has
overtones of irresponsible pursuit of litigation
by someone who either knows he has no proper
cause of action, or is mentally incapable of
forming a rational opinion on that topic."

So long as "oppressive" and "vexatious" were understood in this rather strict sense, the court's duty to exercise its jurisdiction when it was regularly invoked (Ashby v. White [1790] EngR 55; (1703) 2 Ld Raym 938, at p 956 [1790] EngR 55; (92 ER 126, at p 138); Browne v. Commissioner for Railways (1935) 36 SR (NSW) 21, at pp 28-29) was qualified only by the need to avoid injustice to the defendant, and then only where it was possible to do so without injustice to the plaintiff. But the majority in The Atlantic Star chose to pursue a different and more elusive policy than that to which Scott L.J's formulation gave effect. The new policy was not designed to prescribe limited exceptions to the court's duty to exercise its jurisdiction; the new policy sought to identify the forum in which the plaintiff should be constrained to litigate. By that policy, it was hoped to achieve an ideal result - a trial in the forum which would be the most suitable available forum having regard to the interests of both plaintiff and defendant. No longer was the enquiry directed to the question whether an exercise of jurisdiction would result in injustice to the defendant. The basic principle which implements the new policy was stated by Lord Goff of Chieveley in Spiliada in these terms (at p 476):

"a stay will only be granted on the ground of
forum non conveniens where the court is satisfied
that there is some other available forum, having
competent jurisdiction, which is the appropriate
forum for the trial of the action, i.e. in which
the case may be tried more suitably for the
interests of all the parties and the ends of
justice."

24. The steps by which the old principles were transformed into the new reveal a change in English judicial policy. In The Atlantic Star their Lordships rejected a submission that the plea of forum non conveniens which was recognized by the law of Scotland should be available in England. Lord Reid was not satisfied that it was proper, necessary or desirable to make such a fundamental change (p 454); Lord Wilberforce was of the opinion that their Lordships could not take that course (pp 464,468) and Lord Kilbrandon was satisfied that the plea of forum non conveniens had not been adopted as part of the law of England (p 475). Their Lordships, the majority in The Atlantic Star, accepted the principle that no stay should be granted unless the plaintiff is acting vexatiously, oppressively or in abuse of process. But, in their Lordships' view, these words could be interpreted liberally and, in Lord Wilberforce's view (at p 468), they permitted - indeed, required - the court to

"take into account (i) any advantage to the
plaintiff; (ii) any disadvantage to the
defendant; this is the critical equation, and in
some cases it will be a difficult one to
establish. Generally this is done by an
instinctive process - that is what discretion, in
its essence, is."

He added (at p 469):

"I think too that there must be a relative element
in assessing both advantage and disadvantage -
relative to the individual circumstances of the
plaintiff and defendant."

Once the enquiry became a balancing exercise, it was impossible to maintain the formulation of Scott L.J. as the guiding principle, as Lord Diplock pointed out in MacShannon v. Rockware Glass Ltd. (1978) AC 795, at p 811. He restated Scott L.J's formula (at p 812) so as to compare the convenience and expense of trials in the available fora and so as to preserve for a plaintiff "a legitimate personal or juridical advantage". Lord Diplock's restatement proved to be an inadequate bank to hold back the tide of a broad, virtually unstructured discretion. Lord Salmon said (at p 819):

" To my mind, the real test of stay or no stay
depends upon what the court in its discretion
considers that justice demands. I prefer this
test to the test of whether the plaintiff has
behaved 'vexatiously' or 'oppressively' on a
so-called liberal interpretation of these words.
I do not, with respect, believe that it is
possible to interpret them liberally without
emasculating them and completely destroying their
true meaning."

Lord Fraser of Tullybelton adopted the test whether a stay would produce injustice but thought that that question could be answered "generally" by Lord Diplock's restatement (at p 822). Lord Russell of Killowen thought that the result of MacShannon was to stop "not far short of balance of convenience" (at p 823). Lord Keith of Kinkel developed two further notions: the notion of a "natural forum" and the notion of injustice consisting in a serious, outweighing disadvantage. He said (at p 829):

"Where England is the natural forum for the
action, in the sense of being that with which
the action has the most real and substantial
connection, it is necessary for the defendant,
in order to establish injustice to him and no
injustice to the plaintiff, to show some very
serious disadvantage to him which substantially
outweighs any advantage to the plaintiff. Where,
however, the defendant shows that England is
not the natural forum and that if the action
were continued there he would be involved in
substantial (i.e., more than de minimis)
inconvenience and unnecessary expense, or in
some other disadvantages, which would not affect
him in the natural forum, he has made out a
prima facie case for a stay, and if nothing
follows it may properly be granted. The plaintiff
may, however, seek to show some reasonable
justification for his choice of forum in the
shape of advantage to him. If he succeeds it
becomes necessary to weigh against each other the
advantages to the plaintiff and the disadvantages
to the defendant, and a stay will not be granted
unless the court concludes that to refuse it
would involve injustice to the defendant and
(the grant would involve) no injustice to the
plaintiff. As to the nature of the advantages
and disadvantages which may go into the scale on
either side I am of opinion that they must be
such as are capable of being objectively
demonstrated."

In The Abidin Daver (1984) A.C.398, Lord Brandon of Oakbrook pointed out (at p 419) that a defendant no longer had to satisfy the court that continuance of the action would be oppressive or vexatious to him:

"the exercise of the court's discretion in any
particular case necessarily involves the
balancing of all the relevant factors on either
side, those favouring the grant of a stay on the
one hand, and those militating against it on the
other. Such balancing may be a difficult process
and some cases may be very near the line."

In that case, Lord Diplock (at p 411) thought the time had come to acknowledge that the English law was "indistinguishable from the Scottish legal doctrine of forum non conveniens" - the doctrine which had been rejected in The Atlantic Star.

25. Then in Spiliada Lord Goff, speaking for their Lordships, stated the basic principle earlier set out, and spelt out its operation. Lord Diplock's restatement of Scott L.J's formulation was swept aside and the nature of the required enquiry was redefined (at pp 477-478):

" Since the question is whether there exists
some other forum which is clearly more
appropriate for the trial of the action, the
court will look first to see what factors there
are which point in the direction of another
forum. These are the factors which Lord Diplock
described, in MacShannon's case (1978) A.C. 795,
812, as indicating that justice can be done in
the other forum at 'substantially less
inconvenience or expense.' Having regard to the
anxiety expressed in your Lordships' House in the
Societe du Gaz case, 1926 S.C. (H.L.) 13
concerning the use of the word 'convenience' in
this context, I respectfully consider that it may
be more desirable, now that the English and
Scottish principles are regarded as being the
same, to adopt the expression used by my noble
and learned friend, Lord Keith of Kinkel in The
Abidin Daver (1984) A.C. 398, 415, when he
referred to the 'natural forum' as being 'that
with which the action had the most real and
substantial connection'. So it is for connecting
factors in this sense that the court must first
look; and these will include not only factors
affecting convenience or expense (such as
availability of witnesses), but also other
factors such as the law governing the relevant
transaction ... and the places where the parties
respectively reside or carry on business.
... If the court concludes at that stage that
there is no other available forum which is
clearly more appropriate for the trial of the
action, it will ordinarily refuse a stay ... It
is difficult to imagine circumstances where, in
such a case, a stay may be granted.
... If however the court concludes at that stage
that there is some other available forum which
prima facie is clearly more appropriate for the
trial of the action, it will ordinarily grant a
stay unless there are circumstances by reason of
which justice requires that a stay should
nevertheless not be granted. In this inquiry,
the court will consider all the circumstances of
the case, including circumstances which go beyond
those taken into account when considering
connecting factors with other jurisdictions."

Later in his speech, Lord Goff dealt with the preservation of a plaintiff's legitimate personal or juridical advantage which Lord Diplock had propounded as necessary in his restatement of Scott L.J's formula. Lord Goff said (at p 482):

" Clearly, the mere fact that the plaintiff has
such an advantage in proceedings in England
cannot be decisive. As Lord Sumner said of the
parties in the Societe du Gaz case, 1926 S.C.
(H.L.) 13, 22:
'I do not see how one can guide oneself
profitably by endeavouring to conciliate
and promote the interests of both these
antagonists, except in that ironical
sense, in which one says that it is in the
interests of both that the case should be
tried in the best way and in the best
tribunal, and that the best man should
win.'
Indeed, as Oliver L.J. ... pointed out in his
judgment in the present case, an advantage to the
plaintiff will ordinarily give rise to a
comparable disadvantage to the defendant; and
simply to give the plaintiff his advantage at the
expense of the defendant is not consistent with
the objective approach inherent in Lord Kinnear's
statement of principle in Sim v. Robinow, 19 R.
665, 668."

26. Implicit in the adoption of this approach is the absence of fixed guidelines and the consequent uncertainty of the decision in particular cases, as Lord Templeman acknowledged (at p 465):

" The factors which the court is entitled to
take into account in considering whether one
forum is more appropriate are legion. The
authorities do not, perhaps cannot, give any
clear guidance as to how these factors are to be
weighed in any particular case."

27. In retrospect, the English law can be seen to have moved from a discretion confined by a tolerably precise principle to a broad discretion to be exercised according to the judge's view of what is suitable "for the interests of all the parties and the ends of justice". The new approach can offer little guidance to a judge in ascertaining what is "suitable" when the parties have opposing interests, when advantage to one is disadvantage to the other, and when the choice of forum is the very means by which one party's interest is preferred over the other. Once the test involves a balancing of the interests of plaintiff and defendant, the court is inevitably involved in a discretionary conferring of an advantage on one party and a disadvantage on the other; it is involved not in the enforcement of existing rights and liabilities but in the creation, modification or abolition of rights and liabilities. If the touchstone to guide the exercise of such a discretion is to be "the ends of justice", how can a court decide what is just in the particular case except by reference to the law which would govern the matter if it were tried in that court? Even if it were right to disregard procedural advantages involved in refusing a stay, how can a court decide that the ends of justice are served by granting a stay if the law applied in the alternative forum imposes substantive disadvantages - as, for example, by holding a claim to be time-barred, by assessing damages at a higher or lower level or, as perhaps in the present case, by construing a contract differently? The justice which our courts dispense is justice according to our law; the courts cannot compare justice according to differing laws in order to say what satisfies the ends of justice in some abstract sense. The function which the courts of this country would be required to perform if the new English approach were adopted would, in my respectful view, be inconsistent with what we have hitherto understood to be the function and the duty of courts: the function of enforcing rights and liabilities according to the law of the forum (including private international law) and the duty to exercise jurisdiction which is regularly invoked unless the invocation of the jurisdiction is oppressive, vexatious or otherwise an abuse of process.

28. The duty of an Australian court to exercise its jurisdiction is essential to the authority of Australian municipal law to govern the transactions to which that law applies. If the court has a discretion to decline to exercise its jurisdiction in favour of the jurisdiction of a foreign court administering another system of law whenever the foreign court is thought to be "the appropriate forum", the rights and obligations created by Australian municipal law become provisional, dependent on a discretionary judgment. A plaintiff seeking to enforce a right vested in him by Australian law would have to approach the court as a suppliant, seeking the favourable exercise of a discretion to enforce that right. That is not the character in which a plaintiff in this country invokes the jurisdiction of a court to enforce a legal right in contract or in tort.

29. Our jurisprudence is designed to protect the litigant against an unnecessarily wide discretionary power: optima est lex quae minimum relinquit arbitrio judicis, optimus judex qui minimum sibi. Broom's Legal Maxims, 10th ed. (1939), p 46, translates:

"that system of law is the best, which leaves
least to the discretion of the judge - that judge
the best, who relies least on his own opinion".

The maxim expresses a value fundamental to the legal system of a free society. A legal right cannot be defeated by the exercise of a judicial discretion though there may be occasions when the court must determine whether there is a countervailing public interest to which the legal right is subordinated (as where the court refuses to enforce a contract which is contrary to public policy). Generally speaking, it is of the nature of a legal right that the person in whom it is vested is entitled to invoke the state's power to enforce it. For that purpose the courts are at the service of litigants, and the rule of law rests on the courts' duty to exercise their jurisdiction when litigants invoke it.

30. Of course, no legal system can dispense with the need for some discretion in the exercise of judicial power in particular cases. But even when (as in recent times) judicial relief is broadened to encompass new categories of cases, it is preferable to develop legal principles binding both the courts and the parties where that means of development is practicable rather than to confer judicial discretions to determine whether relief should be granted or withheld. An extension of the discretionary power of judges tends to establish a government of men rather than a government of laws.

31. Once the court assumes a wider discretion to refuse to exercise its jurisdiction, as the English cases show, there is no turning back short of the point where the court, guided by no more specific touchstone than the ends of justice, assumes the power to affect the parties' substantive rights. The ineluctable course of decision in England since The Atlantic Star leads me to hold that the true principle is, as Lord Simon of Glaisdale put it in his dissenting speech in that case (at p 471):

"a plaintiff who founds jurisdiction will not be
denied a hearing unless he is misusing the
forensic process so as to perpetrate injustice."

The formulation by Scott L.J. is, and should remain, the law of this country and "oppressive" and "vexatious" should be understood according to their ordinary meaning.

32. If this view be thought chauvinistic, it may be remembered that the law applied in many other countries preserves local jurisdiction even more jealously. Moreover, the established rule does not call for an assessment by the courts of this country of the quality of justice administered elsewhere: an assessment which would be often of dubious validity, if not a source of grave embarrassment. If we be confident of the quality of justice administered in Australian courts, there is no reason why we should defer to other fora, who have it within their power to grant or refuse recognition to and enforcement of the judgments of Australian courts according to their municipal laws.

33. The English development has not escaped criticism: see "Forum Non Conveniens in America and England: 'A Rather Fantastic Fiction'" by Professor David W. Robertson (1987) 103 Law Quarterly Review 398. The criticisms, which supplement the objections earlier stated, are a substantial caveat against departure from the established law. I would not follow The Atlantic Star, MacShannon or Spiliada. They provide no adequate guidance in the exercise of the supposed discretion, as the present case illustrates.

34. It is not fanciful to suppose that one of the principal issues in this case is whether cl.12 on the printed ticket is contained in the contract of carriage. That clause would place such restrictions on a passenger's right to recover damages for personal injuries caused by the negligence of the defendant or its servants that, were it applicable, the plaintiff's action might fail or, if successful, might yield damages limited to $U.S.5000. The Supreme Court of New South Wales, if it were to apply the law of New South Wales to the contract of carriage made in Sydney as the proper law of that contract, would be likely to hold that cl.12, like cl.13, did not become part of that contract and presents no bar to or limitation on the recovery of a judgment for full damages if negligence be proved. An order which has the effect of restricting the plaintiff to suing in the courts of Greece gives the defendant a prospect that the courts of that country, applying the law of Greece, might hold that cl.12 of the ticket is part of the contract of carriage and governs the relief to be granted even if the plaintiff proves negligence and damages greater than $U.S.5000. If that should be the likely result of litigation in Greece - there is no evidence one way or the other - the discretion which is now to be exercised "in the interests of the parties" might be in substance a discretion either to leave the plaintiff with his cause of action intact or to sterilize that cause of action. How could the exercise of such a discretion serve at once the opposing interests of both parties? And how could a court in New South Wales identify the "ends of justice" except by reference to the law of that State which, if it be the proper law of the contract, would probably leave the plaintiff with his cause of action intact?

35. Rejecting the English development, I would apply the established principles. The plaintiff seeks to enforce his cause of action in a jurisdiction which he has regularly invoked. The invocation of that jurisdiction was not - in the relevant sense - oppressive, vexatious or in abuse of process. The plaintiff is therefore entitled to have his case heard and determined by the Supreme Court of New South Wales.

36. I would dismiss the appeal.

DEANE J: A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and to have his claim heard and determined. That prima facie right to the exercise of competent jurisdiction which has been regularly invoked can be displaced by statute but "the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension" (per Scrutton J., In re The Vexatious Actions Act, 1896. In re Bernard Boaler (1915) 1 KB 21, at p 36). The common law itself has traditionally recognized certain special categories of case in which the exercise of jurisdiction must or may be refused in circumstances where diplomatic custom, international comity, public policy or considerations of justice require or may support that course. In this country, those special categories of case have not traditionally encompassed a general judicial discretion to dismiss or stay proceedings in a case within jurisdiction merely on the ground that the local court is persuaded that some tribunal in another country would be a more appropriate forum.

2. The only case in this Court in which it has been found necessary to examine the principles applicable to determine an application by a defendant to a court of competent jurisdiction to have proceedings against him dismissed or stayed on the ground that the action should be brought in a tribunal of some other country is Maritime Insurance Co. Ltd. v. Geelong Harbor Trust Commissioners [1908] HCA 37; (1908) 6 CLR 194. There, Griffith C.J., in a judgment concurred in by the other members of the Court (Barton, O'Connor and Higgins JJ.), identified the relevant principles by quoting extensively from the judgment of Sir Gorell Barnes P. in Logan v. Bank of Scotland (No. 2) (1906) 1 KB 141. In that judgment, with which Collins M.R. and Romer L.J. agreed, Sir Gorell Barnes concluded that the power of a court to stay or dismiss proceedings within its jurisdiction on the ground that the proceedings should have been brought in a tribunal of another country is limited to cases which fall within the general principle empowering a court to dismiss or stay proceedings which are vexatious or oppressive or an abuse of process. Equally important for present purposes, his Lordship held, in words quoted and accepted by Griffith C.J., that the inconvenience of trying a case in a particular tribunal may, of itself, "be such as practically to work a serious injustice upon a defendant and be vexatious" (Logan, at p 151; Maritime Insurance Co., at pp 198-199). The general (or traditional) approach which emerges from Maritime Insurance Co. is that the power of a court whose jurisdiction has been regularly invoked to dismiss or stay proceedings on the ground that they should have been brought in some tribunal in another country is limited to the case where the court is persuaded that it is such an unsuitable or inappropriate forum for their determination that their continuance would work a serious injustice in that it would be oppressive and vexatious to the defendant. On that traditional approach, the clear inappropriateness of the local forum may justify dismissal or a stay. The mere fact that some foreign tribunal would represent a "more appropriate" forum will not.

3. Neither Sir Gorell Barnes in Logan nor Griffith C.J. in Maritime Insurance Co. sought comprehensively to define the circumstances in which it could properly be said that a court was so inappropriate or unsuitable for the determination of proceedings which had been regularly instituted within its jurisdiction that an order for a stay or dismissal should be made on the application of a defendant. In that, they were doing no more than complying with the admonition of Bowen LJ. in McHenry v. Lewis (1882) 22 ChD 397, at pp 407-408 that "it would be most unwise, unless one was actually driven to do so for the purpose of deciding (the) case, to lay down any definition of what is vexatious or oppressive, or to draw a circle, so to speak, round this Court unnecessarily, and to say that it will not move outside it". In Logan, Sir Gorell Barnes commented that the "difficulties which arise in the exercise of this power of the Court do not appear to be so much difficulties in stating the law as difficulties in administering or applying it". He went on (at p 150) to explain the general task of a court in a case such as the present in terms which were quoted, again with approval, by Griffith C.J. (Maritime Insurance Co., at p 198):

"The Court should, on the one hand, see clearly
that in stopping an action it does not do
injustice, and, on the other hand, I think the
Court ought to interfere whenever there is such
vexation and oppression that the defendant who
objects to the exercise of the jurisdiction would
be subjected to such injustice (in defending the
action )that he ought not to be sued in the Court
in which the action is brought, to which injustice
he would not be subjected if the action were
brought in another accessible and competent
Court."

The words interpolated in the above passage (i.e. "in defending the action") are the words supplied by Warrington J. in Egbert v. Short (1907) 2 Ch 205, at p 213 and accepted by Griffith C.J. in Maritime Insurance Co. (at p 198).

4. While it would, in this context, be impracticable to seek to identify in advance every set of possible circumstances which the words "vexatious" and "oppressive" (or the corresponding nouns) are apt to denote, I share Lord Salmon's difficulty (see MacShannon v. Rockware Glass Ltd. (1978) AC 795, at p 818) in understanding how a primary judge can be expected to decide whether particular circumstances come within the denotation of those words if one is unable to say what the words mean. I shall endeavour, in general terms, to indicate my understanding of their meaning subsequently in this judgment. For the moment, it suffices to note that the use of those words serves the purpose of emphasizing that the traditional process of determining such an application for the dismissal or stay of an action is not a mere balancing of convenience or inconvenience or the resolution of competing claims of different jurisdictions neither of which could be said to be clearly inappropriate (cf. per Gibbs J., Cope Allman (Australia) Ltd. v. Celermajer (1968) 11 FLR 488, at p 492). The starting point of the determination of such an application in accordance with traditional principle must be the prima facie right of a plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked. That prima facie right of a plaintiff is not to be lightly displaced or denied. As Sir Gorell Barnes pointed out in his judgment in Logan (at p 150):

"In my opinion, however, the jurisdiction of
the Court to stay proceedings on the ground of
vexation should be exercised with great care;
indeed, I find that Cotton L.J. in McHenry v.
Lewis, at p 406 of the report, said: 'In the first
place, it is a jurisdiction which one ought to
exercise with extreme caution. Stopping in the
middle of a suit a plaintiff from going on, when he
has a right of action as against the defendant, is
a jurisdiction which has to be exercised with very
considerable caution.'"

Not only is the jurisdiction one which should be exercised "with great care" or "extreme caution". It has, as has been indicated, traditionally been seen as a jurisdiction which is only available to be exercised on inappropriate forum grounds where the court whose jurisdiction has been invoked by the plaintiff is so inappropriate for their determination that a continuance of the proceedings in it would be productive of the injustice of oppression and vexation of the defendant. The basis in principle of the relevant jurisdiction to stay or dismiss and the reason why that jurisdiction has traditionally been seen as so confined were explained by Bowen L.J. in Peruvian Guano Co. v. Bockwoldt (1883) 23 ChD 225, at p 233:

"When a plaintiff comes into an English Court he
asks for justice. The Court is bound therefore not
to refuse to hear his case, or to put him under
difficulties in the way of having his action
brought to a conclusion. Of course that rule does
not mean that a plaintiff, under the pretence of
asking for justice, is to do that which is
oppressive and vexatious, and the Courts have
always at Common Law ..., and no doubt in Equity
also, interfered to prevent a plaintiff under
colour of asking for justice from harassing others.
Therefore, when that which he is asking for is
frivolous, or sometimes when he is asking for it
in a way which necessarily involves injustice, the
Courts have interfered" (emphasis added).

As that passage makes clear, the rationale of the traditional jurisdiction to stay or dismiss proceedings on inappropriate forum grounds lies in the avoidance of injustice between the parties in the circumstances of the particular case rather than in more general considerations relating to the overall administration of justice.

5. It should be noted that there are two aspects of the description, in Logan (at p 150) and Maritime Insurance Co. (at p 198), of the task of a court in dealing with such an application for dismissal or a stay. The first is that the court should "see clearly that in stopping an action it does not do injustice". The second is that the court "ought to interfere" where a defendant who objects to the exercise of the jurisdiction would be subjected to vexation and oppression if the proceedings were allowed to continue. Obviously, the injustice referred to in the first of those aspects is injustice to the plaintiff (or, if one of a number of defendants seeks a stay, to the other parties) since the grant of a stay will not involve injustice to a defendant who has applied for it. In Egbert v. Short (at p 212) and in some leading subsequent cases (see, in particular, St. Pierre v. South American Stores (Gath & Chaves), Ltd. (1936) 1 KB 382, at p 398), one finds this first aspect identified as being that the stay must not cause "an injustice to the plaintiff" (emphasis added). A problem with that formulation is that it is prone to encourage the approach that the question whether the grant of a stay would not cause an injustice "to the plaintiff" and the question whether the continuation of the proceedings would be vexatious or oppressive to the defendant do not involve a weighing process, but are isolated questions which must each be independently answered in the affirmative before an order can properly be made dismissing or staying the action. Such an approach appears to me to be artificial and unsound in that it diverts what were correctly seen by the English Court of Appeal in Logan and by this Court in Maritime Insurance Co. as two complementary aspects of the one process into two isolated processes. If a not illegitimate advantage which the plaintiff would lose if proceedings in a prima facie inappropriate court were dismissed or stayed is inconsequential when compared to the oppression or vexation of the defendant if the proceedings are permitted to continue, there will be no relevant injustice to the plaintiff involved in a stay or dismissal. All that will be involved is that the requirements of justice dictate that his claim to that comparatively inconsequential, though not illegitimate, advantage be overridden. On the other hand, the second aspect (i.e. that a continuation of the action would be oppressive or vexatious to the defendant) is not confined to a consideration of the circumstances of the defendant alone. Notions of vexation and oppression in this context involve an essential element of injustice. If the action has a significant connection with the territorial jurisdiction of the local court (e.g. domicile of the defendant, locus of the relevant transactions, applicable law) and regularly instituted proceedings in that court involve some legitimate and substantial advantage to the plaintiff (e.g. effective enforcement of any judgment) which would not be available in proceedings in the foreign tribunal which the defendant claims is the appropriate one for their determination, it is difficult to imagine circumstances in which it could properly be held by the local court that it was such an inappropriate forum for the proceedings that their continuance would be oppressive or vexatious to the defendant. On the other hand, if the action has no significant connection at all with the territorial jurisdiction of the court in which it is instituted, it could not be said that the mere fact that the plaintiff was pursuing a not illegitimate advantage for himself (presumably to the disadvantage of the defendant) must, regardless of the burden imposed upon the defendant by reason of the location of the forum, preclude a conclusion that a continuance of the proceedings would be vexatious or oppressive (cf., e.g., the judgment of Vaughan Williams L.J. in In re Norton's Settlement. Norton v. Norton (1908) 1 Ch 471, at p 482 where his Lordship made plain that it would suffice for a stay if "the expense and inconvenience are of such a character that to allow the action to go on would result in real injustice to the other litigant" and explained that, in the particular case, he had "not thought it necessary to deal in detail with the question of the relative expense and convenience (of proceedings in the competing forums) because ... the English venue was not chosen for any legitimate reason"). In that regard, examination of the judgment in Maritime Insurance Co. (at pp 199-200) discloses that Griffith C.J. disposed of the case on the basis that the question whether an order for a stay should be made involved a comparison of the prejudice or loss of advantage to the plaintiff which would be involved in the grant of a stay and the prejudice to the defendants which would flow from a continuance of the action in the Supreme Court of Victoria. Likewise, Warrington J. made clear in his judgment in Egbert v. Short that he did not regard his statement (at p 212) that the court ought not grant a stay if "an injustice will be caused to the plaintiff" as excluding a weighing process. To the contrary, when he came to apply principle to fact, Warrington J. formulated (at pp 213-214) "the only question" as being whether staying the proceedings would cause "an injustice" to the plaintiff "sufficient to outweigh ... serious injustice to the defendant if the action is allowed to go on" (see, also, the discussion in the speech of Lord Wilberforce in The Atlantic Star (1974) A.C. 436, at pp 468-469).

6. In The Atlantic Star (at p 464), Lord Wilberforce, in the course of a discussion of traditional principles, drew attention to the danger of the adjectives "oppressive" and "vexatious", which are neither technical nor statutory words, "being too rigidly construed and applied" in determining whether proceedings should be stayed or dismissed on inappropriate forum grounds. Those words have an overlapping denotation in that circumstances which can properly be described by one will often be equally susceptible of being described by the other. They were initially applied to the conduct of the plaintiff in bringing or seeking to continue the proceedings. In the well-known statement of principle in Scott L.J's judgment in St. Pierre v. South American Stores (at p 398) however, they were not used as directly descriptive of the conduct of the plaintiff but as descriptive of the objective effect which continuance of the action would have on the defendant: "the defendant must satisfy the Court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him ...". On that approach which, in my view, should be accepted as correct, I do not think that one should read into the words a requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff (note the contrary view expressed by Lord Kilbrandon in The Atlantic Star, at p 477 and by Lord Salmon in MacShannon, at pp 818-819). Rather, it seems to me that those words should be read, in the St. Pierre formulation, as describing and characterizing the objective effect, on balance, of a continuation of the particular forum as the venue of the proceedings rather than as describing the conduct of the plaintiff in selecting or persisting with that forum (cf. per Gibbs J., Cope Allman, at p 494: "the exercise ... of ... jurisdiction would be vexatious to the defendants or would result in any real injustice to them"). That reading of the words is consistent with the approach adopted by this Court in Maritime Insurance Co., at pp 200-201, where the Court engaged in an assessment of what the effect of continuation of the proceedings in the Victorian Supreme Court would, on balance, be as a matter of objective fact. If the plaintiff is not acting bona fide or in pursuit of a legitimate advantage in pursuing the proceedings in the legal system of this country, that will, of course, make it much easier for a continuation of the proceedings to be characterized as vexatious or oppressive, since there will be little if anything to put into the balance against the inconvenience which would be sustained by the defendant. On that approach, "oppressive" should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while "vexatious" should be understood as meaning productive of serious and unjustified trouble and harassment.

7. In the light of the foregoing and at the cost of some repetition, it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties. The reason why that is so is that, once it is accepted that the adjectives "oppressive" and "vexatious" are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them, the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of exceptional circumstances being established by the plaintiff (cf. Spiliada Maritime Corp. v. Cansulex Ltd. (1987) 1 AC 460, at p 478), be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country. Admittedly, that approach to the "vexatious" and "oppressive" test is less stringent and less rigid than would have been accepted in the nineteenth century. Under it, the applicable test pursuant to traditional principles can, in the ordinary case, properly be seen as an "inappropriate forum" test. It cannot, however, properly be seen as a "more appropriate forum" test since the mere fact that a tribunal in some other country would be a more appropriate forum for the particular proceedings does not necessarily mean that the local court is a clearly inappropriate one.

8. In The Atlantic Star, Lord Wilberforce pointed out (at pp 464-466) that the traditional power to stay or dismiss proceeding on inappropriate forum grounds is distinct in principle from the broader Scottish and United States doctrines commonly described by the latin phrase "forum non conveniens". As has been seen, the basis of the traditional power is the general principle empowering a court to dismiss or stay proceedings which are vexatious or oppressive or an abuse of process. Its rationale is the avoidance of injustice between the parties in the particular case. The Scottish and United States doctrines recognize a general discretion to stay or dismiss proceedings in circumstances where it appears that some foreign tribunal is a more appropriate forum for their disposal. It is based on wider notions of what is desirable in the administration of justice. The Scottish doctrine has, in cases after The Atlantic Star, been accepted by the House of Lords as applicable in England (see MacShannon; The Abidin Daver (1984) A.C. 398; Spiliada). The question to which I turn is whether such a broader doctrine should now be adopted in this country.

9. It has been pointed out in Scottish, English and United States cases that the latin phrase forum non conveniens is potentially misleading as a description of the current United Kingdom and United States doctrines to which it is commonly applied (see, e.g., Spiliada, at pp 474-475; Loftus v. Lee (1958) 308 S.W. (2d) 654, at p 658). Even to one with some acquaintance with latin, "conveniens" (lit. "coming together" i.e. conformable, consistent, appropriate) is likely to suggest "convenient" (latin: "commodus") whereas both United Kingdom and United States doctrines, while taking account of convenience, also stress the importance of consideration of the ends of justice (see, e.g., Spiliada, at pp 483, 487; Koster v. (American) Lumbermens Mutual Casualty Co. [1947] USSC 47; (1947) 330 US 518, at p 527). Perhaps even more important, the latin phrase is apt to suggest that the test embodied in those doctrines is directed to whether the court in which the proceedings have been commenced is inappropriate or unsuitable. In fact, as the broader doctrines have developed on both sides of the Atlantic, the test to which they refer has increasingly become whether there is any foreign tribunal which either is the appropriate (in the sense of the "natural") tribunal or is (or, in the case of the United Kingdom, is "clearly") a more appropriate tribunal for the hearing of the particular case. In other words, the test in the United Kingdom and the United States seems increasingly to be one of "forum non convenientissimum". The use of the phrase forum non conveniens is, however, so well established as the designation of the grounds upon which the continued exercise of jurisdiction should be refused under modern doctrines that it would be futile to attempt to proscribe it. The preferable course is, in my view, to use the phrase to refer indifferently both to the less rigid approach to traditional doctrine which would recognize jurisdiction in the ordinary case to dismiss or stay proceedings in favour of a tribunal in a foreign country if the local court is a clearly inappropriate forum, and to the broader United Kingdom and United States doctrines which state the applicable test in terms of whether the foreign tribunal is a more appropriate forum. I shall hereafter use the phrase in that general sense while, on occasion, referring to the United Kingdom and United States doctrines as the "broader forum non conveniens" doctrine.

10. Notwithstanding the fact that the desire for judicial comity has played a significant role in the acceptance of the broader forum non conveniens doctrine in England (see, e.g., The Abidin Daver, at p 411), there are significant differences between the United Kingdom and United States versions of the doctrine. In the United States, the tendency has been to see the doctrine as essentially concerned with convenience: "the central focus of the forum non conveniens inquiry is convenience ... dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice" (Piper Aircraft Co. v. Reyno (1981) 454 US 235, at p 249). Convenience is seen as involving two distinct aspects: private convenience from the standpoint of the litigants (e.g. relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of a view of the premises if that be appropriate and all other practical matters that make trial of a case easy, expeditious and inexpensive) and public interest convenience in the sense of convenience of the particular court in which the action is brought (e.g. the workload of its members and the state of its calendar) and of the overall administration of justice (e.g. the need to help courts avoid conducting complex exercises in comparative law and the danger that there would be an increased flow of litigation into the United States and further congestion of already overcrowded court lists). See, e.g., Gulf Oil Corp. v. Gilbert [1947] USSC 45; (1947) 330 US 501; Piper Aircraft, at pp 251-252 and the helpful discussion in Professor David Robertson's "Forum Non Conveniens in America and England: 'A Rather Fantastic Fiction'", Law Quarterly Review, vol.103 (1987), 398, at pp 400-409. In the United Kingdom, the convenience of particular courts or of the overall court system has not been propounded as a basis for a refusal to exercise jurisdiction. The underlying principle has been seen as requiring that regard be had to the interests of the parties and the ends of justice (see, e.g., Spiliada, at p 483). In this, the United Kingdom doctrine conforms more closely with traditional common law principle than does that of the United States. The differences between the respective doctrines is perhaps best illustrated by the fact that the forum non conveniens objection can, in at least some United States jurisdictions, be taken by the court itself (for its own protection) against the wishes of the parties whereas in the United Kingdom it would seem, at the present stage of development of the doctrine, that the objection must be taken by a party to the litigation.

11. Comparison of the United Kingdom and United States approaches leads me to conclude that, if a broader forum non conveniens doctrine is to be accepted in this country, the model should be that which was established by Spiliada as the law of the United Kingdom. The essential difference between that model and my understanding of traditional principle in this country lies in the actual test for determining whether proceedings should be stayed or dismissed on forum non conveniens grounds. Under traditional principle, that test is whether a continuation of the proceedings would be vexatious and oppressive by reason of the inappropriateness of the local court. For the reasons which I have explained, that test will be satisfied if the defendant establishes that there is an available and appropriate tribunal in some other country and that the local court is a clearly inappropriate forum in all the circumstances. In the United Kingdom model, that test is whether there is an available foreign tribunal which is the "natural", or clearly a more appropriate, forum. Apart from that difference in the actual test, the broader United Kingdom forum non conveniens doctrine generally accords with my understanding of traditional principle. In particular, the discussion of relevant "connecting factors" and of the treatment of "a legitimate personal or juridical advantage" to the plaintiff in Lord Goff's speech in Spiliada (at pp 477-478, 482-484) and the last paragraph of Lord Templeman's supplementary comments in that case (at p 465) offer assistance as to the approach to be adopted under traditional principle as well as to the exercise of the discretion under United Kingdom doctrine. It follows that, on my view of the modern content and practical operation of traditional principle, the question whether the United Kingdom doctrine should be accepted in this country can, for practical purposes, be stated in terms of whether the rule that, in a case where there is an available and appropriate foreign tribunal, proceedings will, in the absence of exceptional circumstances, be stayed or dismissed as vexatious or oppressive if the local court is a clearly inappropriate one, should be extended to embrace any case in which it appears that the available foreign tribunal is the natural or more appropriate forum. So stated, the practical impact of the answer to the question is confined to those probably rare cases in which an available foreign tribunal would be the natural or a more appropriate forum but in which it has not been demonstrated by the defendant that the local tribunal is a clearly inappropriate one. Even when the practical significance of the answer to the question is acknowledged as being so confined, the question itself remains a fundamental one of not inconsiderable importance.

12. There are three main reference points to which regard should be paid in deciding whether the United Kingdom doctrine should be accepted as the law of this country. They are legal principle, decided authority and policy.

13. In so far as legal principle is concerned, the balance seems to me to come down against the adoption of the United Kingdom doctrine. It is a basic tenet of our jurisprudence that, where jurisdiction exists, access to the courts is a right. It is not a privilege which can be withdrawn otherwise than in clearly defined circumstances (cf. Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393, at p 399; [1987] HCA 27; 72 ALR 1, at pp 12-13). A broader forum non conveniens discretion to dismiss proceedings within jurisdiction if it appears that some foreign tribunal is or clearly is a more appropriate forum cannot, in my view, be readily accommodated in any of the established principled qualifications of that basic tenet. In particular, it cannot readily be fitted into the "vexatious or oppressive" qualification even on the less rigid approach to that qualification which should, in my view, be accepted. In that regard, it is perhaps relevant to note that the introduction of such a broader forum non conveniens discretion would introduce or increase disparity in principle between the grounds upon which a local court would hold that a plaintiff should not be permitted to pursue his action before it and the grounds upon which it would hold that a plaintiff should not be permitted to institute or pursue his action in a tribunal of another country in that it would seem clear that a broader forum non conveniens doctrine should not be applied to the latter category of case (see Societe Nationale Industrielle Aerospatiale v. Lee Kui Jak (1987) 1 AC 871, esp. at pp 892-898).

14. For this country, the balance of authority also favours the traditional doctrine. The statement of principle in Maritime Insurance Co. was that of a unanimous court and was soundly based on existing authority at that time. It has now stood as authority in this country for almost eighty years. Outside this country however, the weight of authority in the common law would seem increasingly to favour the acceptance of the broader forum non conveniens discretion. In particular, the judgment of Lord Goff of Chieveley (which was concurred in by the other Law Lords) in Spiliada offers a bridge between traditional principle and the broader new doctrine. In this, as in so many other areas of the common law, it is "incumbent upon the courts in different jurisdictions to be sensitive to each other's reactions (in) ... striving to achieve ... a careful analysis and weighing of the relevant competing considerations" (see Rowling v. Takaro Properties Ltd. (1988) 2 WLR 418, at p 430). Nonetheless, it would, in my view, require strong and clear policy considerations to prevail against the considerations of principle and the authority of the long-standing decision in Maritime Insurance Co. which favour adherence to traditional doctrine.

15. When one turns to policy, the position seems to me to be not clear. Obviously, there is considerable force in the approach that if the tribunals of another country provide a more appropriate forum for the determination of a claim, it should not be brought in this country in the absence of some good and sufficient reason (cf. per Lord Denning M.R., MacShannon v. Rockware Glass Ltd. (1977) 1 WLR 376, at p 380; 2 All ER 449, at pp 451-452). The factors of public interest convenience, to which the United States (but not the United Kingdom) courts would seem to be giving increasing weight, are likewise of some cogency. The costs of the administration of justice are high and judicial resources are limited. In this country, as in the United States, court lists in many jurisdictions are congested, most judges are overworked and justice is far too often delayed. There is much to be said for the view that the courts (including jurors) should not be troubled by actions which would more appropriately be brought in some foreign tribunal. The consideration of the overall balance of private convenience to the actual parties prima facie favours a rule that a plaintiff should be required to litigate in the most appropriate forum. Finally, international comity supports the approach that the courts of this country should refrain from hearing actions in circumstances corresponding to those in which courts of other countries would refrain from entertaining them on the ground that they should more appropriately be brought in Australia.

16. Some of the above policy considerations (e.g. the workload of judges) are not, however, of the kind which are usually taken into account by Australian courts in formulating principles of law. More important, policy considerations do not all point in the one direction. The desirability of a plaintiff bringing an action in the most appropriate court does not obliterate the undesirability of further expanding the scope of a discretion to refuse to exercise competent jurisdiction. Apart from considerations of principle, any further expansion of that discretion is likely to lead to increased uncertainty for litigants and more litigation about where to litigate. The force of the argument based on public interest convenience is difficult to assess in circumstances where there is nothing before the court to suggest that there would be more than a small number of actions brought in this country which would survive the traditional test but which would nevertheless have been more appropriately brought in some foreign tribunal. The strength of the appeal to judicial comity is also difficult to assess in circumstances where some leading western countries, particularly in relation to actions by their own residents, decline to observe even the judicial restraint shown by common law courts under traditional doctrine (see, e.g., Professor Friedrich Juenger, "Judicial Jurisdiction in the United States and in the European Communities: A Comparison", Michigan Law Review, vol.82 (1984), 1195, esp. at pp.1204-1205). Moreover, if one turns from what is praised as judicial comity to what is condemned as judicial chauvinism, it seems that the broader forum non conveniens discretion is liable to bring with it the notion that "(c)itizens or residents deserve somewhat more deference than foreign plaintiffs" (see Piper Aircraft, at p 256, n.23). The effect of the adoption of that approach in Piper Aircraft was concisely identified (at p 262) by Stevens J. (with the concurrence of Brennan J.) in dissent as being that "Pennsylvania was not a convenient forum in which to litigate a claim against a Pennsylvania company that a plane was defectively designed and manufactured in Pennsylvania". At least, any judicial chauvinism which might, in earlier times, have been implicit in traditional principle was well intentioned towards the foreign plaintiff.

17. The conclusion to which I have come in relation to the arguments based on policy is that they are persuasive but not compelling. In my view, they are not sufficiently strong to warrant a decision by this Court to depart from existing principle and authority at least at this stage of the development of the law. If the law of this country is to be changed in that regard, it seems to me to be preferable that it be done by legislation enacted after full inquiry and informed assessment of international as well as domestic considerations of a kind which this Court is not equipped to make of its own initiative (cf. per Black J., dissenting, Gulf Oil Corp. v. Gilbert, at p 517). Such legislation could lay down comprehensive rules and guidelines and could avoid the judicial discretion to stay or dismiss proceedings on inappropriate forum grounds being undesirably unconfined. Accordingly, I would not alter established principle in favour of a judicial adoption of the broader forum non conveniens doctrine.

18. When one turns to the facts of the present case, it is apparent that the effect of adherence to traditional principle is that the appeal must fail. In essence, the appellant's argument is that the proceedings should be brought in the courts of Greece rather than in the Supreme Court of New South Wales. In the context of what has been said above, the answer to that argument is that the Supreme Court of New South Wales cannot properly be seen as a clearly inappropriate forum.

19. Questions of the assessment of the quantum of damages aside, there are three main general issues involved in the proceedings. The first is whether certain actions and transactions resulted in a contract between the respondent and the appellant before the time when the respondent arrived in Greece. The second is what, in the light of the resolution of the first issue, were (i) the terms of the ultimate contract between the appellant and the respondent and, in particular, (ii) the contractual or other effect of the "small print" clauses contained in the ticket which was not made available until about the time when the respondent boarded the appellant's ship in Greece. The third is whether, in the light of the resolution of the first two issues, the appellant is liable to the respondent for damages for the injuries he sustained and, if so, what is the basis on which such damages are to be assessed.

20. The respondent is an Australian who resides in Queensland. All of the transactions and actions relating to the first issue took place in New South Wales. The question whether those transactions and actions resulted in a binding contract between the parties must, in my view, be determined by reference to the law of New South Wales - the locus contractus. The Supreme Court of New South Wales is not only an appropriate, but is the most appropriate, forum for determining that first issue.

21. If, as the material presently before the Court would seem to me to indicate, the actions and transactions in New South Wales resulted in a binding contract between the respondent and the appellant before the respondent left Australia, the Supreme Court of New South Wales and the Greek courts would have competing claims to be considered as the most appropriate forum to determine the second general issue (i.e. the identification of the terms of the contract and of the contractual or other effect (if any) of the "small print" clauses in the passenger ticket). Clearly, the Greek courts would be the most appropriate forum for determining the third general issue, namely, liability for damages (in the context of the relevant contract) for the injuries which the plaintiff sustained on a Greek ship in Greek waters between Turkish and Greek ports. If the case reaches an assessment of the quantum of the damages to which the respondent is entitled, both the Supreme Court of New South Wales and the Greek courts would have competing claims to be considered the most appropriate forum.

22. In these circumstances, there is much to be said for the view that the more appropriate forum for the hearing of the overall action would be a tribunal in Greece. I doubt, however, that the appellant has established that that view is clearly correct. Be that as it may, it seems to me to be plain that it could not properly be said that the Supreme Court of New South Wales is, in all the circumstances, a clearly inappropriate forum. In that regard, the present case provides a good illustration of the greater uncertainty about whether an action should be dismissed or stayed on inappropriate forum grounds, with the added likelihood of litigation about where to litigate, which would be a consequence of the substitution of a broader forum non conveniens discretion for the existing discretion under traditional principle.

23. There are three further matters of which I would make brief mention. The first is that it was submitted on behalf of the appellant that the contract between itself and the respondent contained a clause submitting any dispute between the respondent and itself to the exclusive jurisdiction of the courts of Athens. I find it unnecessary to consider what the effect of such a clause would be in the circumstances of the present case since the view which I have formed, on the material at present before the Court, is that the only contract between the appellant and the respondent was concluded in New South Wales and contained no such clause. In that regard, I am in general agreement with the reasons of Wilson and Toohey JJ.

24. The second further matter is that I have found it unnecessary, for the purposes of the present case, to consider whether the principles governing an application for dismissal or a stay on inappropriate forum grounds are applicable to an application for leave to serve process outside territorial jurisdiction or for leave to proceed in a case where process has been so served. In the case of an application for leave to serve or proceed, the jurisdiction invoked is statutory and not inherent and a refusal of the application involves an exercise of the relevant jurisdiction to determine the application for leave to serve or to proceed rather than a refusal to exercise jurisdiction which has been regularly invoked.

25. The final further matter to which I would make brief reference is a matter of some general importance in principle. It is that it should be apparent from what has been said above that it seems to me that an adoption by this Court of a broader forum non conveniens doctrine would represent a change of the law based not on considerations of principle but on grounds of policy. That being so, I can see force in the view that, if this Court were to adopt a broader forum non conveniens doctrine for policy reasons, the adoption of that doctrine should be prospective only and inapplicable to actions which had already been commenced in a local court and which could not properly be stayed on the ground that the local court is a clearly inappropriate forum. That matter was not however argued by the parties in the present case and it is unnecessary that I pursue it.

26. The appeal should be dismissed.

GAUDRON J: Dr Fay, ("the respondent") is a resident of Queensland. In early 1983, Dr Fay and his wife made a booking through a New South Wales agent for a cruise of the Greek Islands aboard the M.S. Stella Oceanis. Before paying for the cruise, the respondent was shown a brochure outlining details of Sun Line cruises. The "small print" at the back of the brochure provided, (inter alia) under the heading "Things to Know Before You Go", that "the transportation of passengers ... is governed by the terms and conditions printed on the Passenger Ticket Contract which may be inspected at any Sun Line office." The respondent gave evidence that he did not read the body of the brochure and, in particular, did not read this condition.

2. The booking was made through the Sydney office of J.M.A. Tours, an enterprise authorized to accept bookings on behalf of Oceanic Sun Line Special Shipping Company Inc. ("the appellant"), the owner of the Stella Oceanis. Notwithstanding the "small print" at the back of the brochure, J.M.A. Tours did not, as events transpired, have a Passenger Ticket Contract (or any documentation of the terms thereof) available for inspection.

3. The Stella Oceanis is a Greek registered ship. The appellant company is incorporated in Greece, but is a subsidiary of Marriott Corporation, which is incorporated in the United States of America. The fare for the cruise was calculated in U.S. dollars.

4. Upon payment of the fare, J.M.A. Tours issued an Exchange Order in the names of the respondent and Mrs F. Fay. The Order specified (inter alia) the name of the vessel, the sailing date and time, the journey (Piraeus to Piraeus) and the allotted cabin. The Order contained a statement as follows:

"CANCELLATION OF CRUISES OR ALTERATION OF
ITINERARY
Article 2 of the Sun Line passage contract
specifies that in the event of the passenger
cancelling his passage or not using it for the
sailing for which it was issued, passage money will
NOT be refunded. ONLY IF space released is resold
will the passage money be refunded. Sun Line
reserves the right to cancel any cruise, in which
case the passage money will be refunded. Sun Line
also reserves the right to alter the itinerary of
any cruise if this should become necessary or
desirable for any reason. Times of arrival and
departure at the various ports of call are given as
a general guide, but no guarantee can be given that
they will be adhered to. This order will be
exchanged for a Sun Line ticket when boarding
vessel."

5. In Athens, the Order was exchanged for a passenger ticket, which was written in English, and which, in cl.12, specified various exemptions from liability and limited recovery for any claim (including bodily injury) to $U.S.5000.00. Clause 13 of the ticket provided that any action against the appellant "must be brought only before the courts of Athens Greece to the jurisdiction of which the Passenger submits himself formally excluding the jurisdiction of all and other court or courts ...".

6. During the course of the voyage the respondent was injured. After his return to Australia he obtained medical treatment in New South Wales. He now seeks to recover damages for his injuries in an action in negligence commenced in the Supreme Court of New South Wales. The jurisdiction of the court to entertain the action derives from Pt 10, r.1(e) of the Supreme Court Rules (N.S.W.) which (subject to Pt 10, r.2) then permitted service of originating process outside the State "where the proceedings are founded on, or are for the recovery of, damage suffered wholly or partly in the State caused by a tortious act or omission wherever occurring." The respondent obtained leave to effect service pursuant to Pt 10, r.2.

7. After service the appellant made application (inter alia) that the proceedings be stayed. That application was refused by Yeldham J. An appeal to the Court of Appeal was, by majority, dismissed (Glass and McHugh JJ.A., Kirby P. dissenting). The appellant now invites this Court, on appeal, to adopt the doctrine of forum non conveniens as enunciated in Spiliada Maritime Corporation v. Cansulex Ltd. (1987) 1 AC 460. Alternatively, the appellant argues that the respondent was contractually bound to submit to the exclusive jurisdiction of the Athenian courts, and that this Court should respect that submission.

8. A foreign jurisdiction clause in a contract does not operate to exclude the forum court's jurisdiction, but may constitute a ground for that court to refuse to exercise that jurisdiction: The Fehmarn (1958) 1 W.L.R. 159; (1958) 1 All E.R. 333. Where there is an agreement to submit to another jurisdiction, the power to grant a stay rests on the principle that the courts will, except where the plaintiff adduces strong reasons against doing so, require the parties to abide by their agreement. As Dixon J. observed in Huddart Parker Ltd. v. The Ship Mill Hill [1950] HCA 43; (1950) 81 CLR 502, at pp 508-509, "the Courts begin with the fact that there is a special contract between the parties to refer, and therefore in the language of Lord Moulton in Bristol Corporation v. John Aird & Co. ((1913) AC 241, at p 259), consider the circumstances of a case with a strong bias in favour of maintaining the special bargain or as Scrutton LJ. said in Metropolitan Tunnel and Public Works Ltd. v. London Electric Railway Co. ((1926)(Ch 371, at p 389), 'a guiding principle on one side and a very natural and proper one, is that parties who have made a contract should keep it.' " See also The Makefjell (1976) 2 Lloyd's Rep 29; The Kislovodsk (1980) 1 Lloyd's Rep. 183 and The El Amria (1981) 2 Lloyd's Rep 119, at p 122. However, this presumption does not, as Dixon J. went on to observe in The Mill Hill at p 509 (referring to Aird, at p 260 and Metropolitan Tunnel, at pp 389-390) restrict the circumstances which will warrant a refusal of a stay.

9. The principles applicable to the exercise of the discretion to grant a stay on the basis of submission to another jurisdiction render it necessary to consider whether the contract concluded between the appellant and the respondent included the choice of jurisdiction clause in the passenger ticket. A preliminary question arises: by what law is the existence of that term to be decided?

10. In general terms, the rights and obligations of parties to a contract are to be ascertained in accordance with the proper law of the contract, viz., the law which the parties intended to govern their contractual relationship, or, in the absence of agreement, the law with which the transaction has its closest connection: Bonython v. Commonwealth of Australia [1950] UKPCHCA 3; (1951) AC 201, at p 219. A foreign jurisdiction clause may, but does not necessarily, indicate an intention that the contractual rights and obligations of the parties should be governed by the law of the agreed jurisdiction: Compagnie d'Armement Maritime S.A. v. Compagnie Tunisienne de Navigation S.A. (1971) AC 572, at p 609. In the context of this appeal, the question whether the appellant and respondent agreed in terms of cl.13 is primarily relevant to the issue of whether a stay should be granted. However, it may also be relevant, in the context of the broader issues between the parties, to the ascertainment of the proper law of their contract, should that need to be decided. If the question whether the parties intended to be bound by cl.13 were to be asked in the course of ascertaining the proper law of the contract, it would in my view fall for answer in accordance with the lex fori, although this is not a matter which appears to have been authoritatively decided.

11. In Compagnie d'Armement Maritime S.A. Lord Diplock (at p 603) distinguished between "the first and second stage in the ascertainment of the proper law of the contract", saying

"The first stage ... when any question arises
between parties to a contract as to the proper law
applicable to it, is to determine whether the
parties intended by their contract to exercise any
choice at all and, if they did, to determine what
was the system of law which they selected. In
determining this the English court applies the
ordinary rules of English law relating to the
construction of contracts.
If, applying these rules, the court reaches the
conclusion that the parties did not intend to
exercise any choice of proper law, or is unable to
identify what their choice was, it becomes
necessary for the court to proceed to the second
stage, of determining itself what is the proper law
applicable. In doing so, the court applies the
English rule of the conflict of laws relating to
the proper law of the contract." (emphasis added)

Later, at p 605, his Lordship said:

"... the application of a positive rule of English
law as determinative of the proper law of a
contract does not arise until the second stage,
that is, when the court has been driven to the
conclusion that the parties themselves did not
intend to exercise any choice of proper law or is
unable to identify what their choice was."

12. The above statements support the proposition that the lex fori determines (inter alia) questions as to the existence, construction and validity of terms bearing upon determination of the parties' agreement as to the proper law. Indeed I think that must be so. If the question of what is the proper law is one to be answered by application of the lex fori, until the lex fori provides the answer to that question there is no scope for the operation of any other law. In other words, all questions which are necessarily antecedent to a determination of the proper law of a contract must fall for answer in accordance with the lex fori. See also Mackender v. Feldia A.G. (1967) 2 QB 590, at p 603; Cheshire and North, Private International Law, 11th ed. (1987), p 477.

13. As there is a "strong bias" in favour of granting a stay of proceedings in the event that there has been a submission to the exclusive jurisdiction of a foreign forum, it may well be that in some proceedings for a stay it is unnecessary to embark upon an inquiry as to the "proper law" of the contract, even though the contract contains a foreign jurisdiction clause. Accordingly, it seems to me to invite unnecessary complexity in proceedings for a stay based on the parties' submission to a foreign jurisdiction to allow questions as to the existence, construction or validity of a foreign jurisdiction clause to be determined by application of any law other than the lex fori. However, as, in my view, it is the lex fori which provides the answer to the same question when asked in the process of determining the proper law, it follows that it must also provide the answer when it is necessary to determine whether or not a stay should be granted on the basis of submission to a foreign jurisdiction.

14. The principles of New South Wales law relevant to a determination of whether the appellant and respondent agreed in terms of cl.13 of the passenger ticket are set out in the judgment of Brennan J. I respectfully adopt his Honour's statement of applicable principle and his Honour's conclusion that the foreign jurisdiction clause was not incorporated in the contract of carriage between the appellant and the respondent. It follows that the appellant is not entitled to call in aid of a stay the "strong bias" acknowledged in The Mill Hill. I now turn to consider whether this Court should adopt the doctrine of forum non conveniens as enunciated in Spiliada.

15. The decision of the House of Lords in Spiliada is the latest significant step in the formulation of the rules to be applied in determining whether an action brought in English courts should be stayed on the ground that the action may be litigated in another available forum which has competent jurisdiction if that alternative forum is the "appropriate" forum for the trial of the action: that is, as expressed by Lord Keith of Kinkel in The Abidin Daver (1984) A.C. 394, at p 415, if it is "the natural forum", being "that with which the action had the most real and substantial connection." The appropriate forum is to be determined by the balancing of "connecting factors", of which a legitimate personal or juridical advantage accruing to a plaintiff by reason of the choice of forum is not decisive: Spiliada, at pp 478 and 482. See also de Dampierre v. de Dampierre (1988) 1 AC 92, at pp 109-110.

16. The decision in Spiliada was a clear departure, albeit one which evolved through a number of cases, from the earlier rule which finds its clearest expression in St. Pierre v. South American Stores (Gath and Chaves) Ltd. (1936) 1 KB 382, at p 398 (per Scott L.J.) as follows:

"(1.) A mere balance of convenience is not a
sufficient ground for depriving a plaintiff of the
advantages of prosecuting his action in an English
Court if it is otherwise properly brought. The
right of access to the King's Court must not be
lightly refused. (2.) In order to justify a stay
two conditions must be satisfied, one positive and
the other negative: (a) the defendant must satisfy
the Court that the continuance of the action would
work an injustice because it would be oppressive or
vexatious to him or would be an abuse of the
process of the Court in some other way; and (b) the
stay must not cause an injustice to the plaintiff.
On both the burden of proof is on the defendant."

17. The principle enunciated in St. Pierre had earlier been accepted by this Court in Maritime Insurance Co. Ltd. v. Geelong Harbor Trust Commissioners [1908] HCA 37; (1908) 6 CLR 194, a decision later applied by Gibbs J. in the Supreme Court of the Australian Capital Territory in Cope Allman (Australia) Ltd. v. Celermajer (1968) 11 FLR 488, at p 492. It was not suggested that the application of that principle as currently understood would, in the instant matter, entitle the appellant to a stay of proceedings.

18. The concept of forum non conveniens is one firmly entrenched in the jurisprudence of other legal systems, for example, those of Scotland and the United States. The adoption of a similar doctrine in England is very recent. All evolutionary change in common law is explicable by reference to underlying developments in the law or in society. The origin of the doctrine ultimately adopted in Spiliada is to be found in The Atlantic Star (1974) A.C. 436, where Lord Reid (at p 453) based his re-examination of what he described as "the rather insular doctrine" as the need "to try, so far as possible, to keep the development of the common law in line with the policy of Parliament and the movement of public opinion." Our legal heritage is the gift of the common law of England, and our legal system necessarily has much in common with that of England. Where, however, developments in the common law of England reflect underlying changes which may not be matched in Australian law or society, care must be exercised in determining the extent to which changes in the English common law should be reflected in the common law of this country. For example, expressions of preference in England for "judicial comity" rather than "judicial chauvinism" (as in The Abidin Daver, at p 411) are readily understandable when it is borne in mind that England is a member of the European Community, which is not merely an alliance of similarly minded sovereign nation states, but a community with its own parliament, its own laws and its own court. Indeed, the European court has said that member states "have limited their sovereign rights, albeit within limited fields": van Gend en Loos v. Nederlandse Tariefcommissie (1963) 2 CMLR 105, at p 129.

19. Although the decisions which have marked the development and acceptance in England of the doctrine of forum non conveniens have proceeded on the basis that it is a separate principle of law, it is not, I think, without significance that acceptance of the doctrine followed changes in the choice of law rules applicable in matters of private international law. The decision in Chaplin v. Boys (1971) AC 356 has resulted in a situation in which liability for a foreign tort may be determined by application of foreign law. Although the English common law has long recognized that contractual rights and obligations may fall for determination by the application of foreign law as the proper law of the contract, the role of the proper law has undergone considerable change. In Amin Rasheed Shipping Corporation v. Kuwait Insurance Co. (1984) AC 50, Lord Diplock (at p 61) described the proper law of a contract as "the system of law by reference to which (the parties') mutual rights and obligations under it are to be ascertained." Lord Wilberforce (at p 69) said it was "the law which governs the contract and the parties' obligations under it; the law which determines (normally) its validity and legality, its construction and effect, and the conditions of its discharge." Those statements allow little scope for the operation of English law as either the lex fori or the lex loci contractus. The position appears to have been different, at least in relation to the lex loci contractus, at the time of the decision in Chatenay v. The Brazilian Submarine Telegraph Company, Limited (1891) 1 QB 79, when it was said by Lord Esher M.R. (at pp 82-83) that:

"if a contract is made in a country to be executed
in that country, unless there appears something to
the contrary, you take it that the parties must
have intended that that contract, as to its
construction, and as to its effect, and the mode of
carrying it out (which really are the result of its
construction), is to be construed according to the
law of the country where it was made. But the
business sense of all business men has come to this
conclusion, that if a contract is made in one
country to be carried out between the parties in
another country, either in whole or in part, unless
there appears something to the contrary, it is to
be concluded that the parties must have intended
that it should be carried out according to the law
of that other country."

Given the developments which have taken place in England in relation to choice of law rules, it is not difficult to envisage that in many cases involving an international aspect brought in English courts, the rights and obligations of the litigants may fall for determination by the application of foreign law, English law merely providing the procedural framework within which the rights and liabilities are to be determined.

20. The question of stay of proceedings in cases in which the forum will merely provide the procedural framework for the application of foreign substantive law raises, I think, an issue not satisfactorily resolved by application of the test enunciated in St. Pierre, at least as that test has been understood to date. In such cases the selected forum will have no real interest in the substantive laws to be applied, and prima facie it would seem that the interests of justice might be better served by adjudication in the forum of the country whose substantive laws will be determinative of the rights and liabilities of the parties. Moreover, there may be cases where the forum has been selected because of some advantage the plaintiff may obtain by virtue of the procedural laws of that forum, but there is otherwise no (or insufficient) connection between the plaintiff and that forum to vest in the plaintiff any reason to expect that the advantage sought should be available to him or her. Such matters seem to me to warrant either a more liberal approach to the principles enunciated in St. Pierre, or acknowledgment that considerations of convenience ought to be taken into account in determining whether a stay should be granted in cases where the rights and liabilities of the parties must be determined by the application of foreign substantive law, the forum law merely providing the procedural framework for the application of that foreign law. However, the forum non conveniens doctrine enunicated in Spiliada goes further, Lord Goff of Chieveley allowing (at p 481) that "the fact that English law is the putative proper law of the contract may be of very great importance ... or it may be of little importance as seen in the context of the whole case."

21. A doctrine which confers upon a court a discretion to decline to exercise its regularly invoked jurisdiction and thereby decline to participate in the application of its own substantive law (whether by the operation of its choice of law rules or directly of its own force) raises fundamental problems. The principles enunciated in St. Pierre, and those applicable to foreign jurisdiction clauses, already permit of that possibility: the former operating upon considerations of justice, and the latter, by reason of the agreement of the parties. However, I do not think that possibility should be extended, whether by adoption of the doctrine as enunciated in Spiliada or by reformulation of existing principle. The primary obligation of the courts of this country is to the laws of this country. That obligation, in my view, requires that any new principle or any reformulation of existing principle should be confined to cases where the rights and liabilities of parties to the litigation must, by reason of applicable choice of law rules, be determined by the application of the substantive law of a foreign legal system, the forum law merely providing the procedural framework for the action.

22. It may be objected that to deny an extension of power to the courts to stay proceedings capable of being adjudicated in a more appropriate forum, other than in respect of matters which fall for determination by the application of the substantive law of a foreign country, is to allow the possibility that the courts of this country will be obliged to determine matters which have little connection with this country. I think such a possibility is more theoretical than real, but more importantly, the possibility arises, not so much from the principles applicable to the grant of a stay, but from the rules (both common law and statutory) as to justiciability, and the common law rules governing choice of law.

23. Where the rights and liabilities of parties fall entirely for determination by the application of foreign substantive law the selected forum will on occasions be an inappropriate forum in the sense explained in the judgment of Deane J. in this case. Arguably the selected forum may be inappropriate, notwithstanding that the defendant is domiciled, resident or carries on business within the jurisdiction, particularly if the defendant is also amenable to the jurisdiction of a forum of the country whose laws govern the matter in issue and that country is the country with which the matter in issue has its closest connection. It seems to me that there is likely to be little, if any, practical difference in cases falling entirely for determination by the application of foreign substantive law whether the question of stay is determined on the basis of the selected forum being an inappropriate forum in the sense explained by Deane J., or whether it is determined on the basis that there is another available, and more appropriate, forum as allowed in Spiliada. For present purposes it is sufficient if, subject to one matter hereafter to be mentioned, I state my preference for the inappropriate forum test as stated by Deane J. That test is consonant with established principle, and gives the approach enunciated in St. Pierre an operation attuned to modern circumstances.

24. Acceptance that a stay may be granted in cases not involving the application of the substantive law of the forum if the forum is inappropriate in the sense explained by Deane J. does not, in my view, mean that proceedings for a stay require, or should in every case provide an opportunity for, determination of the question of applicable law. It seems to me undesirable for litigation as to where litigation should take place to be complicated by considerations of applicable law, particularly if those considerations may involve the determination, whether provisionally or otherwise, of questions of fact or law which trench upon the ultimate question of liability or the extent thereof. Accordingly, in my view, the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities (including the extent of liability) of the parties.

25. In the present case it is fairly arguable that the substantive law of New South Wales is applicable in the determination of the rights and liabilities of the parties. Leaving aside the question of applicable law as to the determination of tortious liability (as to which see Koop v. Bebb [1951] HCA 77; (1951) 84 CLR 629; Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. [1965] HCA 61; (1965) 114 CLR 20 and Pozniak v. Smith [1982] HCA 39; (1982) 151 CLR 38) it seems to me that the question whether the parties have agreed upon limitation of liability in accordance with cl.12 of the passenger ticket may fall for decision by application of the law of New South Wales, whether or not the law of New South Wales is the proper law of the contract. At this stage it suffices to say that, in my view, questions as to the formation of contract, including questions as to the existence of a contract or its terms, and questions as to validity, are not necessarily or invariably to be decided by the proper law, or what would be the proper law if a contract had come into existence. See Kay's Leasing Corporation Pty. Ltd. v. Fletcher [1964] HCA 79; (1964) 116 CLR 124, per Kitto J., at p 143 and Libling, "Formation of International Contracts" (1979) 42 Modern Law Review 169.

ORDER

Appeal dismissed with costs.