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casetreasury

Henry v Henry (1996) 185 CLR 571

Facts: Wife (German) brings proceedings for divorce in Monaco and husband (Australian) then brings divorce proceedings in Australia (FCA). The wife seeks a stay of proceedings on the grounds of “clearly inappropriate forum”. FNC was rejected at first instance and again, on intermediate appeal.


Held: The AU proceedings were stayed. It would be vexatious and oppressive to commence second proceedings in AU (no part of marriage was in AU, no assets in AU and husband could not show any judicial advantage). If the identical issue or same controversy is litigated in different countries which have jurisdiction, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words


Held (Dawson, Gaudron, McHugh and Gummow JJ): “It is prima facie vexatious and oppressive...to commence a second or subsequent action in the courts of this country if an action is already pending wrt the matter in issue”; this is not determinative but highly relevant to determination.


Held (at 592): Other relevant factors include:

  • Jurisdiction of the foreign court

  • Whether its judgment can be enforced in Australia

  • Relative connections each party has with foreign vs forum court

  • Ability of each party to participate in the proceedings in foreign vs forum court

  • Costs incurred

  • Ability of each party to participate in the proceedings on equal footing in foreign vs forum court

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