Forum Non Conveniens in Australia: A Comparative Analysis

Abstract

This paper critically examines the law of forum non conveniens, in particular the use of the ‘clearly inappropriate forum’ test in Australia, compared with the ‘more appropriate forum’ test applied in jurisdictions such as the UK and the US. It traces the development of the law in the UK in relation to forum non conveniens, including the English acceptance of the doctrine, and how it has been applied in various cases. Some criticism of the ‘more appropriate forum’ test is noted, and it is not recommended that the courts adopt the ‘laundry list’ approach evident in some US decisions, where up to 25 different factors are considered in assessing a forum non conveniens application. It considers the Australian ‘clearly inappropriate forum’ test, and concludes that the ‘clearly inappropriate forum’ test should no longer be followed in that it is unnecessarily parochial and is not consistent with other goals of the rules of private international law including comity. Links between Australia and the subject matter may well be tenuous. Confusion attends the application of the test in Australia at present, the court has rejected the English approach but claims to apply some of the factors mentioned in the English approach in the Australian test, and there is an undesirable schism between statutory rules applicable in domestic cases and the approach when the common law doctrine of forum non conveniens is used. The law regarding forum non conveniens should be harmonious with choice of law rules, and interest analysis can assist in formulating the desired approach to forum non conveniens applications.