In Oceanic (at 412; 48) Deane J was prepared to accept the relevance of the connecting factors described by Lord Goff in the Spiliada .
10 In James Hardie & Coy Ltd v Barry (2000) 50 NSWLR 357, Mason P said, in the same vein, at [87]:
Matters falling solely in category (iii) … are … to be approached on the basis of determining which forum is "more appropriate", in the sense discussed in Spiliada Maritime Corporation Ltd v Cansulex Ltd [1987] AC 460 as distinct from applying the High Court's learning about forum non conveniens in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 and later cases.
11 In Rosenboom & Ors v Qantas Ltd & Ors [2002] NSWSC 792, I held that connecting factors of the kind referred to in Spiliada did not exhaust the considerations which could legitimately be taken into account. (In that case, I took into account, as a major consideration, that a large number of cases of a similar kind were being jointly case managed in the Supreme Court of Victoria.)
12 In the present case, "nuts and bolts" considerations strongly favour New South Wales as the appropriate forum. The contract was made in New South Wales, the equipment was delivered in New South Wales and is still here, the alleged defective condition of the equipment came to attention in New South Wales, the damage as alleged was suffered in New South Wales, the witnesses are predominantly located in the eastern states, if not exclusively so, and a Victorian company is a potential third party in the New South Wales proceedings. I do not doubt that, but for the determination of Roberts-Smith J, the present application to transfer the New South Wales proceedings to the Supreme Court of Western Australia would fail.
13 It remains then to evaluate the significance of the Roberts-Smith J determination.
14 Mr Burton submitted that the Western Australian determination should be given no weight at all because it was decided in other proceedings and because it was decided on a basis which was incorrect as a matter of law under authority binding on me. Furthermore, Mr Burton submitted, the choice of jurisdiction should not turn on where a determination under the cross-vesting legislation happened to be made first. Mr Thawley, on the other hand, submitted that I should have regard to the practical implications of refusing the present application.
15 I prefer Mr Thawley's approach. If the present application is not granted and the proceedings continue in both states, it is to be expected that each party, as a defendant in the respective proceedings, will plead by way of defence and / or cross-claim the causes of action which they plead in the respective proceedings as plaintiffs. The same issues will then fall to be decided in the respective proceedings. The practical consequence will be that whichever proceeding first comes to trial will dictate the result by res judicata or issue estoppel. Accordingly, if the present application is not granted, the trial forum will be determined by the happenstance of which of the proceedings first comes to trial. There will be a race. Such a situation would bring the law into disrepute. Meanwhile, both proceedings would be worked up, with wasteful duplication in costs. One of the objects of uniform legislation was to avoid such duplication: per Rogers AJA in Bankinvest (at 723G). On the other hand, if the present application is granted, it can be anticipated that the transferred proceedings will either be discontinued or consolidated with the proceedings pending in Western Australia with no further duplication in costs.
16 Mr Thawley also submitted that the principle of issue estoppel precluded Rossi from advancing a case in this Court contrary to the determination of Roberts-Smith J or, alternatively, that the proceedings here should be stayed as an abuse of the processes of this Court by reason of that determination.
17 I am not attracted by this argument. The issue in the present application (whether it is in the interests of justice to transfer the New South Wales proceedings to Western Australia) is not the issue decided by Roberts-Smith J (whether it was in the interests of justice to transfer the Western Australian proceedings to New South Wales), notwithstanding that the issues in the proceedings would eventually be the same were they both to proceed to trial. It further appears that an issue estoppel will usually arise only from a final determination of rights rather than from an interlocutory or purely procedural determination: Bienvenu v Royal Society for the Protection of Animals [1967] VR 656, at 663.
18 Abuse of process also depended upon the same issue having been decided by Roberts-Smith J.
19 In view of my intention to grant Rossi's application on other grounds, it is unnecessary to decide these alternative approaches.
20 Because I intend to grant the application for a transfer order, Rossi's alternative application for a stay of proceedings does not fall to be determined.
21 It is very unsatisfactory that fundamentally different tests for a transfer order under uniform cross-vesting legislation have come to be applied by the Supreme Court of New South Wales and that of Western Australia. In view of the absence of an avenue for appeal to the High Court, it seems that the only sure way of correcting the situation is for the uniform legislation to be amended specifying the test for a transfer order in more precise terms.
22 I make the following orders: