I. INTRODUCTION
5.1 As recently as 1978 the House of Lords was invited, in Hesperides Hotels Ltd v Agean Turkish Holidays Ltd,1 either to overrule or considerably to limit the width of that rule. The House declined to do so. It is therefore necessary to consider the four reasons which were advanced by their Lordships for retaining the Mozambique rule. The Commission believes however, that none of these reasons is in any way compelling to dissuade the Parliament of New South Wales from legislating for the abolition of the rule.
II. GENERAL ACCEPTANCE OF THE RULE IN COMMON LAW JURISDICTIONS
5.2 In the Hesperides Hotels case, Lord Wilberforce, delivering the leading judgment of the House, gave as his first reason for declining to depart from the Mozambique rule that the latter is accepted with differing degrees of force and emphasis in other jurisdictions of the common law.2 These sentiments were echoed by Lord Fraser in slightly different words,3 This argument is, however, of doubtful validity. With regard to the cases from Australia and Canada to which Lord Wilberforce referred,4 no argument was raised in any of them that the decision in the Mozambique case was not binding on the various courts, and the only issue for consideration was its ambit of application. The fact that various courts have assumed that they are obliged to follow the Mozambique decision is scarcely to be described as “acceptance” of the rule.
5.3 The phraseology adopted by Lord Wilberforce is rather more applicable to the situation as it existed in the United States. It has been remarked above (see para 3.6) that in 1811 a Circuit Court in that country, in Livingston v Jefferson, independently arrived at the conclusion which the House of Lords was subsequently to reach in the Mozambique case. However, Lord Wilberforce himself acknowledged5 that courts in Arkansas, Minnesota and Missouri had refused to follow Livingston v Jefferson , and it has been noted above (see para 3.12) that, more recently, the Supreme Court of Wisconsin has also departed from the Circuit Court decision. Lord Wilberforce did not refer to the Restatement, Second, of Conflict of Laws in which the American Law Institute has put forward the proposition that all the States of the Union ought to accept jurisdiction, at least in actions for trespass to foreign land, if not for suits which seek to determine title to, or right to possession of, foreign land (see para 3.11).
III. THE NEED TO DEVELOP A DOCTRINE OF FORUM NON CONVENIENS
5.4 A further reason given by Lord Wilberforce, in the Hesperides Hotels case, for refusing to limit or overrule the Mozambique case may be quoted in full: 6
“Revision of the rule may necessitate consequential changes in the law. In order to prevent ‘forum shopping’ and overlapping, one such change would have to relate to ‘forum non conveniens’ a principle not yet fully developed in England (see The Atlantic Star [1974] AC 436 and McShannon v Rockware Glass Ltd [1978] AC 795) and, if English courts were to be given an extended jurisdiction, requiring legislative definition.”
5.5 Two answers may be given to this argument. First, the House of Lords has, subsequent to the decision in the Hesperides Hotels case, developed a principle of “forum non conveniens”, under which the courts will decline to exercise jurisdiction when they are satisfied that:
There is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie, in which the case may be tried more suitably for the interests of all. the parties and the ends of justice.”7
This judicial development the House of Lords has been adopted in recent decisions of the New South Wales Court of Appeal.8
5.6 The second answer to Lord Wilberforce’s argument is that his Lordship has subsequently seen no need for legislative definition of the notion of forum non conveniens in relation to the extended jurisdiction of the English High Court to determine question of trespass to foreign land. Reference has already been made to s3O of the Civil Jurisdiction and Judgments Act 1982 (UK), which limited the Mozambique rule to those circumstances in which title to or right to possession of foreign land is the principal issue before the court. When the bill for that Act was being debated in the House of Lords, Lord Wilberforce spoke to another of the clauses, but not to the clause which was to become s30.9
IV. NO RADICAL CHANGE OF CIRCUMSTANCES
5.7 Lord Wilberforce, in the Hesperides Hotels case, gave further support to his conclusion not to depart from the Mozambique decision in the following words:
It cannot be said that since 1893 [the date of the Mozambique case] there has been such a change of circumstances as to justify this House in changing the rule: see Miliangos v George Frank Textiles Ltd [1976] AC 443.10
But while the House of Lords in its judicial capacity did not consider that there had been a sufficient change in the surrounding circumstances to justify a departure from one of its own previous decisions the House of Lords in its legislative capacity is not subject to such restrictions and, as noted in the preceding paragraph, the Mozambique rule was substantially limited by the Act of 1982.
V. NEED FOR REFORM BY LEGISLATION RATHER THAN JUDICIAL DECISION
5.8 The fourth reason advanced by Lord Wilberforce in the Hesperides Hotels case11 for the House of Lords, in its judicial capacity, refraining from disturbing the Mozambique rule was that:
The nature of the rule itself, involving, as it clearly must, possible conflict with foreign jurisdictions, and the possible entry into and involvement with political questions of some delicacy, does not favour revision (assuming such to be logically desirable) by judicial decision, but rather by legislation.
5.9 This reason is, of course, of no relevance so far as this Report is concerned, as we are concerned to argue for abrogation of the rule by Parliament. It may, nevertheless, be observed that the legislative change made to the Mozambique rule by s3O of the Civil Jurisdiction and Judgments Act 1982 (UK) was not preceded by any form of independent review (such as a report from the English Law Commission), nor did it excite any comment during its passage through both Houses of the United Kingdom Parliament. The point may also be made that, in other areas of the law, the courts, no less than the legislature, have been prepared to establish rules which involve “possible conflict with foreign jurisdictions”. Most notable among such rules is that derived from the court’s inherent jurisdiction whereby it may enjoin a party before it from continuing with proceedings which that party has already commenced in a foreign court, if the local court is regarded as a more appropriate forum.12
FOOTNOTES
1. [1979] AC 508.
2. Id at 536.
3. Id at 545.
4. Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479; Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30; Gray v Manitoba and NW Railway Co (1896) 11 Man R 42; Albert v Frazer Companies Ltd [1937] 1 DLR 39.
5. [1979] AC 508 at 536.
6. [1979] AC 508 at 537; see also Lord Fraser at 544.
7. Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 476 per Lord Goff.
8. Evers v Firth (1986) 10 NSWLR 22; Batchelor v Dahlia Mining CO Ltd, 19 August 1986 (unreported); Oceanic Sunline Special Shipping Co v Fay (1987) 8 NSWLR 242;the High Court has since overturned this last case, see Oceanic Sunline Special Shipping Inc v Fay (1988) 165 CLR 197.
9. See Hansard, House of Lords, 5th Series, Vol 426, cols 721, 722.
10. [1979] AC 508 at 537; in the Miliangos case, the House of Lords departed from the rule, re-affirmed as recently as 1960 in Re United Railways of the Havanna and Regla Warehouses Ltd [1961] AC 1007, that an English court could give a judgement expressed only in English currency.
11. [1979] AC 508 at 537.
12. The most recent discussion by a court of final appeal of this power is to be found in Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (Privy Council on appeal from Brunei); in Australia, see In the Marriage of Takach (1980) 47 FLR 441 (Family Court of Australia has power to enjoin the respondent to Australian matrimonial proceedings from continuing with similar matters in Hong Kong).
