Charlotte Black – Associate
At Eales & Mackenzie, we are often approached by clients who question whether Victoria is the correct location for legal proceedings to be heard and determined.
You may have had commercial litigation proceedings issued against you, but are located overseas and you question whether Australia is the correct location for your matter to be determined.
You may wish to issue commercial litigation proceedings against another party who is located overseas but are unsure as to whether the Australian courts will hear your case.
Issuing proceedings – is Australia the correct location
If you have concluded that you are ready to file proceedings against someone, whether due to a breach of contract, a failure to pay a debt or another matter, it is important that you first seek legal advice as to the merits of your claim.
There are strict rules and guidelines which require that legal proceedings only be brought where a case has genuine merit. Where proceedings are brought in a case that has no merit, serious consequences can result.
Proceedings issued against you
If you have had proceedings against you, it is imperative that you seek urgent legal advice.
Even if you wish to challenge the Australian courts jurisdiction to hear and determine the matter, there are strict time limits that must be adhered to. Failure to comply with those time limits may result in you, not only being unable to challenge the jurisdiction, but may also result in the plaintiff being able to obtain a judgment against you for failure to file a defence.
Jurisdiction clauses in contracts or agreements
When determining the correct location to bring your proceedings or determining whether Victoria is the correct location for the dispute to be determined, it is important to first have regard to any documents that were signed by the parties. For example, you should consider whether a contract was entered into which dictates the terms of the agreement between you. Often, these agreements state the location of the court that any dispute should be heard in.
However, even if there is a clause which states that the matter must be heard and determined in a particular location, this does not mean that the clause is enforceable. You should seek legal advice as to the enforceability of the contract and any relevant jurisdiction clause prior to making a determination as to where to file your proceedings.
If there is no clause which speaks to where any dispute should be heard, or alternatively, there was no written agreement entered into by the parties, the Victoria courts will look to whether Victoria is the appropriate jurisdiction.
Appropriate Jurisdiction Test
Where there is no contract which speaks to where any dispute should be heard and determined (or where such a clause exists but is unenforceable), the parties should apply to the Victorian courts, if they want a determination whether the case should be heard and determined in Victoria by way of the appropriate jurisdiction test.
The relevant Victorian legalisation provides that the Victorian courts may exercise their jurisdiction to stay (or stop) a proceeding issued in Victoria where Victoria is a clearly inappropriate forum for the determination of the proceeding.
However, it is important to note that the courts will not stay a proceeding without substantial evidence, and it is important to note that Victoria must be a “clearly inappropriate” forum and not that it is merely inconvenient to one or more parties for the case to be determined in Victoria. As such, the mere fact that one party, for example, is located outside of Victoria (whether interstate or overseas) would not give rise to Victoria being deemed an inappropriate forum.
In considering whether Victoria is a clearly inappropriate forum, the court will look to whether there are any connecting factors which link the matter to Victoria. Such connecting factors may include the location of the parties (for example, is one of the parties resident in Victoria), what is the location of any witnesses to the matter (for example, are there any witnesses located in Victoria) and whether there were any aspects of the disputed transaction which took place in Victoria (for example, were payments which were due pursuant to the transaction made to a Victorian bank account).
This is by no means an exhaustive list of the factors the court may look to in order determine whether Victoria is a clearly inappropriate forum. It is imperative to seek appropriate legal advice to determine whether Victoria is a clearly inappropriate forum prior to determining whether to file your proceedings or to challenge any proceedings issued against you.
What should I do next
If you are concerned whether you should bring proceedings in Victoria or whether, if proceedings have been brought against you, Victoria is the correct location for your proceedings to be heard and determined, you should seek immediate legal advice.
Failure to do so may result in you being unable to challenge the jurisdiction or being unable to bring any proceedings.
If you require specialist advice on the jurisdiction of the Victorian courts in a commercial matter, please contact Mr Dean Jones or Ms Charlotte Black on (03) 8621 1000 at our Melbourne office or on (03) 9331 1144 for our Essendon office or via email at advisors@emlawyers.com.au.
