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ESSAY POINTS RELATING TO SEMINARS 1-2
Criticism of Spiliiada
1. Oceanic Sun Line/Voth Malidra (2 different cases) - showed how in Australia, the same broad principle of forum non conveniens is applied, but differently. In Australia the immediate focus is not on the comparative appropriateness of the foreign court as against the local one, but on whether the Australian court is clearly inappropriate for the trial
2. What this rule essentially does is determines whether the Australian court can hear the case. It reflects the view that if a court is given jurisdiction, it should convincing grounds before it declines to exercise it BUT
- the leading Australian cases have been PI cases, where the prospect of making the injured C go limping off to a court far away, but preferredby the wrongdoer, is unattractive Spiliada is better because it allows a judge in England to yield to the contention that the courts of another country would be better placed, and are available, to give the parties the adjudication they deserve. Itreflects judicial comity in this sense. Lord Goff described it as the 'most civilized of legal principles' (Airbus
Industrie v Patel)
4. Lord Goff
- in Airbus he also called the doctrine of forum non convenines, 'an imperfect weapon' but still said it was flexible enough to get the best result which was conducive to practical justice
ABELA v BAADARANI
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