I. INTRODUCTION

7.1 On the coming into force of the complementary scheme for the cross-vesting of jurisdiction, and provided that scheme survives any challenge to the High Court as to its validity, the jurisdiction of the Supreme Court will be greatly expanded. But a further aspect of that scheme is that any superior court in the country will be able to transfer a matter that has been commenced before it to another superior court, if the latter is regarded as the more appropriate forum. In view of this expansion of jurisdiction (which includes the abrogation of the Mozambique rule with regard to land within Australia), the Commission regards it as the proper time to recommend a further expansion of the jurisdiction of courts in New South Wales, subject nevertheless to limitations relating to their appropriateness to hear any particular matter.

II. CROSS-VESTING SCHEME

7.2 In October 1986, the Commonwealth Attorney General introduced into the Federal Parliament the Jurisdiction of Courts (Cross-Vesting) Bill 1986. It is stated in the Explanatory Memorandum to that Bill that the Standing Committee of Attorneys General has agreed that the Federal Parliament, will vest in each of the State Supreme Courts jurisdiction currently reserved exclusively to federal courts or Territory courts, and that, by complementary legislation, each of the State Parliaments will vest the jurisdiction of their State Supreme Courts in federal and Territory courts. A further aspect of this complementary scheme is that each of the State courts will have vested in it the jurisdiction of each of the other State courts. The necessary legislation has been enacted by the Commonwealth, all the States and the Northern Territory, but will not come into force until Rules of Court have been made to give effect to the provision.

7.3 When the scheme as outlined in the previous paragraph comes into operation,¹ the jurisdiction of the New South Wales Supreme Court will no longer be barred or limited by the operation of the Mozambique rule, if the relevant “foreign” land were elsewhere in Australia (including the external Territories). The reason is that in relation, say, to land in Western Australia, the effect of the Mozambique rule is to permit only the Supreme Court of that State to exercise jurisdiction. But, under the complementary scheme of cross-vesting, each of the other State Supreme Courts will have the same jurisdiction as that of the Western Australia court, in relation to matters concerning title etc to land in Western Australia.

7.4 The Explanatory Memorandum to the Commonwealth Bill also makes the point that while all the superior courts in the country will have a substantially increased power to hear matters, that power will, it is hoped, be exercised only by the Court which is the most appropriate forum for the resolution of the issues in dispute between the litigants. The legislation includes provisions enabling the transfer of a matter from one superior court to another, the latter is regarded by the former as the more appropriate forum.

III. THE MOST APPROPRIATE FORUM

7.5 Reference has already been made in Chapter 2 to the fact that the English courts have now fully adopted a doctrine of forum non conveniens, which had its origins in Scots law last century. The essence of that doctrine is that, whether the court has jurisdiction as of right (by reason of the presence of the defendant in the country) or is requested to take jurisdiction as a matter of discretion under its Rules of Court, it will decline to exercise that jurisdiction if there is another forum, to which both parties are amenable, in which the case may be tried more suitably for the interests of the parties and the ends of justice.² If the Mozambique rule were abolished in its entirety, it is suggested that, when a matter before the Supreme Court relates to foreign land, that Court might still decline to exercise jurisdiction, but on the basis that it is not an appropriate forum rather than because of the principle to be derived from that decision of the House of Lords.

7.6 In order to assist in clarifying the suggestion just made, we offer illustrations of the way in which the court might approach its task of determining whether it is the most appropriate forum for the resolution of a dispute.

7.7 Suppose that A dies domiciled in New South Wales, possessed of personal property in the State and real property in England. Members of his or her family claim that A has not made adequate provision for them in the will, and commence proceedings under the Family Provision Act 1982. It has already been indicated (see para 4.9) that the court in England does not have jurisdiction to hear a family provision action in such circumstances. The New South Wales court should take jurisdiction in the matter and should include the value of the English realty in determining whether (and, if so, to what extent) further provisions should be made for members of A’s family. Providing that the executors of A’s will are resident in New South Wales, the Supreme Court would be able to make an effective order requiring the executors to transfer the English realty to members of A’s family, or to sell that property and distribute the proceeds among members of the family; such an order would not purport to do more than place a personal obligation on the executors to comply with it.

7.8 Suppose that B dies domiciled in New South Wales, possessed of personal property in the State and real property in country X, and that members of B’s family commence proceedings under the Family Provision Act. Whether the Supreme Court should hear those proceedings, and include the value of the foreign real estate in A’s estate for those purposes, would depend on such factors as: whether the law of country X included provisions analogous to the Family Provision Act; if so, whether the courts of country X would have regard only to the land in country X, or to the whole of A’s estate, in arriving at a determination; the proportion which the value of the foreign land bears to the total value of B’s estate; whether the executors of B’s will reside in this State, and are more clearly amenable to an order made by the Supreme Court, or, reside in country X, rendering an order made against them less likely to be effective.

7.9 Suppose that C, a resident of this State, owns premises in country Y which are leased to D, a resident of country Y, but the lease is then assigned to E, a resident of this State. Disputes arise between C and E relating to a failure to fulfil covenants in the lease which touch and concern the land. An action between C and E would be classified as local and not transitory (see para 4.3), but the Supreme Court should take jurisdiction to hear the action; both parties are amenable to that jurisdiction and, provided that the only relief sought were the payment of monetary compensation, the Court’s order would be effective If, however, E were resident in country Y, or the relief sought were forfeiture of the lease, or relief against that forfeiture, or for any other reason there was no real and substantial connection between the action and this State, or an order made by the Court might not be effective, the Court should decline to exercise jurisdiction.

7.10 Suppose that F, a resident of this State, enters into a contract in Sydney with G for the sale by F of a block of land in country Z, but one of the parties fails to fulfil its obligations thereunder, whereupon the other seeks a decree of specific performance of the contract in the Supreme Court. Although the Court would, as the law now stands, be entitled to hear the matter (see paras 4.4-4.5) it is suggested that whether it should take that power should depend on such factors as the degree of connection between both parties and the State, the probable effectiveness of any order made, and the availability (or lack thereof) of effective remedies in country Z.

FOOTNOTES

1. At the time this report was prepared, the cross vesting scheme had not yet come into operation. The scheme commenced 1 July 1988.

2. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, esp at 476, per Lord Goff. See now para 1.8 above.