Contract Media Sales (Aust) Pty Ltd v Roads & Traffic Authority of New Soth Wales [1999] VSC 391

9. This Court is given jurisdiction to exercise the jurisdiction given to it by that section of the New South Wales Act by s.9 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic.) which so far as is relevant reads:

"9. The Supreme Court - (a) may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of a law of a State relating to cross-vesting of jurisdiction."

13. The plaintiff Contract Media Sales (Aust.) Pty. Ltd. is incorporated in the State of Victoria and at all times material has conducted its business in this State.

16. The defendant, as its name suggests, is a New South Wales statutory corporation. It was established in that State by s.46 of the Transport Administration Act 1988.

19. By an agreement made in or about January 1996 between the plaintiff and the defendant, the defendant granted the plaintiff a licence to use advertising space in a handbook to be distributed to motorists whose vehicles were registered in New South Wales, together with vehicle registration and drivers' licence renewal notices.

22. The plaintiff contends that the defendant has breached the agreement thereby causing the plaintiff to suffer substantial loss and damage.

25. On 9 December 1997 the plaintiff brought a proceeding against the defendant in the Melbourne Registry of the Federal Court of Australia seeking to recover damages for the loss it alleges it has sustained.

28. On 23 March 1998 the defendant filed a Notice of Motion in the Federal Court whereby it sought to have the plaintiff's proceeding transferred to the New South Wales Registry of the Court on the ground that New South Wales was a more convenient forum.

31. By order of 2 April 1998 Finkelstein, J. dismissed the Notice of Motion. At the same time his Honour made various interlocutory orders in the proceeding designed to achieve a prompt hearing of the proceeding.

34. In due course an order was made fixing the Federal Court proceeding for trial in Melbourne on 12 April 1999. However, because of amendments both parties then made to their pleadings, that trial date was vacated.

37. On 17 June 1999 the High Court of Australia delivered its decision in Re Wakim, Ex parte McNally and Another (1999) 163 C.L.R. 270.

40. As a consequence of that decision Finkelstein, J. determined that the Federal Court no longer had jurisdiction to hear and determine the plaintiff's proceeding and on 2 July 1999 made an order staying the taking of any further step in the proceeding save for compliance with an order he had made that the plaintiff be permitted to file certain affidavits in reply to affidavits filed in the proceeding by the defendant.

43. Being aware of the nature of the order Finkelstein, J. would be making in the Federal Court proceeding, on 24 June 1999 the plaintiff filed the present proceeding in this Court. The pleadings in the proceeding are identical to the pleadings in the Federal Court proceeding.

46. On 29 July 1999 the defendant filed its summons in the Court seeking to have the proceeding transferred to the Supreme Court of New South Wales.

49. The following are the matters advanced on behalf of the defendant in support of its contention that it is in the interests of justice that the proceeding be transferred.

1. The defendant is a statutory body incorporated in the State of New South Wales and represents the Crown in that State.

2. By clause 13.5 of the agreement, the agreement is governed by the law of New South Wales.

3. The case is concerned with advertising placed in a handbook for distribution in New South Wales to New South Wales drivers.

4. The plaintiff claims a sum of $1.5m for losses it alleges it has sustained by reason of the delay in issuing two series of the handbook; a delay it contends was caused by breaches of the agreement by the defendant. Such a claim will necessitate an examination of the extent of distribution of the handbook in New South Wales.

5. The plaintiff also claims a sum of $2.2m for loss of goodwill in New South Wales. Such a claim will involve an investigation of factual matters arising in New South Wales.

6. More of the witnesses to be called at the trial of the proceeding reside in New South Wales than in Victoria.

58. I am not at all persuaded that at this late stage of the litigation between the parties, those reasons are sufficient to justify a transfer of the proceeding to New South Wales.

61. A decision has already been made by a Judge of a superior court that the proceeding should be heard in Victoria. As a matter of principle alone, it would be quite wrong for a Judge of another superior court to make an order, in effect overruling the previous order, unless there had been such a change in the circumstances surrounding the proceeding since the earlier order was made, as to justify the adoption of such a course.

64. Save for some minor variations of the sums claimed by the plaintiff, the form of the proceeding is the same as it was at the time the proceeding was stayed by Finkelstein, J. on 2 July 1999.

67. The plaintiff is a small private business incorporated in Victoria and with its registered office in this State.

70. From the material filed in the Court on behalf of the plaintiff it is strongly arguable that the agreement between the parties was made in Victoria.

73. The majority of the work performed by the plaintiff in carrying out the agreement was performed in this State.

76. The proceeding is now almost ready for trial. If an appropriate approach is made to the Listing Master it is probable that a date could be fixed for the trial either later this year or early next year.

79. Having perused the material presented to the Court on behalf of both parties it would seem to me likely that as many witnesses living in Victoria will be called to give evidence as those living in New South Wales.

82. As to the convenience of witnesses I make the following observations:

1. It is no longer the onerous task it used to be for witnesses to travel from Sydney to Melbourne. The flight takes no longer than a train trip from the outer suburbs of Melbourne to the city centre.

2. In a case of this nature any witness who would be inconvenienced by travelling from Sydney to Melbourne should be able to give his evidence by video link.

87. In the circumstances I am far from satisfied that it is in the interests of justice that this proceeding be transferred from Victoria to New South Wales and the application in that regard is refused.

90. The order of the Court is that the defendant's summons filed in the Court on 29 July 1999 is dismissed with costs to be taxed, including reserved costs, and paid by the defendant.