Friday, 12 November 2010

Forum Conveniens

Leading from my last post about travelling, I have noted the recent case of Udovenko v The Ship: MV Pelican8 November 2010 Gendall J High Court, Nelson CIV-2009-442-514. 

This was an admiralty case in which the defendant sought a stay of the case because there was a better forum, being the courts of Australia, and where it was argued, the Australian law applied to the contract. Justice Gendall observed 2 things which may be important for choice of courts, that the Australian litigation would cost more than New Zealand litigation, and that the growth of videoconferencing means the arguments about the location of witnesses to support a change of court, may not have the same weight any more. He declined the stay enabling the plaintiff to continue in the New Zealand High Court.

As an aside, this means it will be in the Nelson Registry, which when I last attended had a very friendly refrigerator with beer and wine left for the lawyers on an honesty system. That alone, if it still exists, must be a compelling reason for keeping the forum as the Nelson High Court, although I suspect Justice Gendall may not have factored this in.

It is a while since I argued the decision in Air Nauru v Niue Airlines Ltd - [1993] 2 NZLR 632, where these issue were argued in the context of liquidation proceedings, which effectively trumped the exclusive jurisdiction clause in the contract.   

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