Permanent stay on the basis of form non conveniens - Cross-vesting jurisdiction - Turns on own facts - No new matter of principle

Jurisdiction of Courts (Cross-Vesting) Act 1987 s5

Evidence Act 1906 s120

Bankinvest AG v Seabrook (1988) 14 NSW LR 711

Gianarelli & Ors v Wraith & Ors [1988] HCA 52; (1988) 165 CLR 543

Harrison & Ors v Trewhella & Anor (1994) 13 WAR 394

Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460

Yates Property v Boland Corporation & Anor [1998] FCA 8; (1998) 157 ALR 30

1 McKECHNIE J: On 3 August 1998 the plaintiff issued a writ against the defendant endorsed as follows:

"1 The Plaintiff's claim is for damages for loss and damage suffered as a result of the negligence and/or breach of contract of the Defendant as the Plaintiff's solicitor in the conduct of the Supreme Court of New South Wales proceedings EQ2742 of 1990 and interest thereon pursuant to Section 32 of the Supreme Court Act (WA) 1935 and costs."

2 The defendant entered a conditional appearance to that writ.

3 No further action has been taken by the plaintiff to prosecute his claim.

4 By chamber summons of 15 October 1998 the defendant sought orders that:

"1. The plaintiff's action be permanently stayed on the grounds of forum non conveniens.

2. The plaintiff pay the defendant's cost of and incidental to this application."

5 At the hearing of the summons the defendant was granted leave to amend the orders sought on the chamber summons to include an alternative order to have the proceedings transferred to the Supreme Court of New South Wales pursuant to s5(2) of the Jurisdiction of Courts (Cross-Vesting) Act (1987).

6 The plaintiff is a company director from Western Australia.

7 In 1988 he entered into a contract with a company called "Super Division Demolitions C. Theos & Sons Pty Ltd ("Super Division") regarding building up an area of land in Botany, New South Wales.

8 Matters fell out between the parties and some time in the early 1990s (the precise date being a matter of dispute) the plaintiff engaged the defendant, a solicitor in New South Wales to act on his behalf in an action against Super Division.

9 The defendant obtained counsel's advice from Mr Green.

10 Subsequently Mr Harrison of counsel drew a statement of claim.

12 Very shortly before trial solicitors for Super Division informed Mr Parbury that the company had been deregistered on 2 June 1994.

13 The matter nevertheless proceeded to trial between the period 20 March 1995 to 23 March 1995. Mr Douglas was represented by Mr Elliott of counsel.

14 On 31 March 1995 Justice Windeyer dismissed the claim. An appeal was instituted which Mr Douglas argued himself unsuccessfully on 2 May 1997.

15 Although a statement of claim has yet to be filed, the following bases of claim can be discerned from the affidavit of Mr Douglas filed in these proceedings:

1. Mr Parbury failed to have pleaded a claim for an account of profits, a claim that Mr Douglas and Super Division were in joint venture or partnership or a claim for misleading and deceptive conduct contrary to the Trade Practices Act.

2. A failure of Mr Parbury to take steps to prevent Super Division from dissipating its assets by seeking a mareva injunction or taking other steps.

3. The general delay in bringing the case to trial.

4. The defendant failed to take note of the deregistration of Super Division or take any steps in respect of that issue.

5. A failure generally to advise Mr Douglas as to the issues, possible courses of action and in particular the conduct of the actual trial.

16 These allegations, and I stress that they are only at this stage allegations against Mr Parbury, are allegations in negligence and in breach of contract. There is nothing about them which suggest that there is any particular difference of law which would render the action better suited for the Supreme Court of New South Wales.

17 As I indicated during the course of the hearing, I would not grant a stay of proceedings. Having regard to the uniform cross-vesting legislation in this country, it would be a very rare case indeed where a court would exercise its jurisdiction to permanently stay proceedings on the basis of forum non conveniens when the more convenient forum was a Federal Court or another State Court. The principles laid down in Oceanic Sun Line Special Shipping Company v Fay [1988] HCA 32; (1988) 165 CLR 197 and Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 have limited application in dealing with causes of action which arise within the Commonwealth of Australia. The authorities are of assistance in determining where the interests of justice might lie in s5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. However courts are likely to be slow to deny a plaintiff a right to hearing by staying proceedings permanently, when there is a simple alternative of transferring proceedings to the more appropriate court or to a more convenient jurisdiction. In the present case the proceedings have been regularly commenced and are not vexatious or an abuse of process. The West Australian Supreme Court is not a clearly inappropriate forum, especially having regard to the fact that the contract between Mr Douglas and Mr Parbury was entered into by telephone when Mr Douglas was in Western Australia.

18 For these short reasons I would refuse a permanent stay.

19 In Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1989) 1 WAR 531 Ipp J had occasion to consider the transfer of an action to Queensland.

20 Particularly he had to construe the concept "interests of justice" in s5(2)(b)(iii). He reached the conclusion that the expression is not meant to be interpreted without limitation and relied upon Oceanic Sun Line Special Shipping Company per Deane J at 241 where he said:

"A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and to have its claim heard and determined. That prima facie right and the exercise of competent jurisdiction which has been regularly invoked can be displaced by statute but

'the language of any such statute should be jealously watched by the courts and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension'.

Per Scrutton J in Re Vexatious Actions Act 1896 in Re Bernard Bowler (1915) 1 KB 21 at p36 ... In this country those special categories of case have not traditionally encompassed a general judicial discretion to dismiss or stay proceedings in a case within jurisdiction merely on the ground that the local court is persuaded that some other tribunal in another country would be a more appropriate forum."

"In my view the 'interests of justice' under s5(2)(b)(iii) require 'the prima facie right of the plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked' to be taken into account. There is no reason to exclude this important right from a consideration in the interests of justice."

22 In Platts v Lambert (1994) 12 WAR 319 at 324 Malcolm CJ expressed agreement with Ipp J.

23 From an examination of those two cases and the authorities cited therein, I conclude that the applicant Mr Parbury carries the burden of displacing jurisdiction from Western Australia in favour of New South Wales.

24 The plaintiff has a prima facie right to have his action determined in Western Australia.

25 On behalf of Mr Douglas it is argued that the legal issues are likely to be similar in Western Australia and New South Wales. I accept this submission. The liability of a solicitor for damages for negligence and/or breach of contract is not subject to such variation as to give a juridical advantage to the courts of New South Wales. The defendant makes the point that issues of practice and procedure may become relevant. Accepting this to be so, nevertheless these matters can be the subject of evidence given before a court in Western Australia.

26 Mr Douglas deposes that he is the sole director, shareholder and employee of his family company and that he has a dependent family. He will be placed at a severe disadvantage if this action were to be transferred to New South Wales.

27 On the other hand, the defendant is a sole practitioner in practice in Sydney. His practice is primarily in litigation and he stands to be severely disadvantaged if required to travel interstate to give evidence and provide instructions on matters relating to this action.

28 In my view the personal circumstances of both Mr Douglas and Mr Parbury are such as to lead to the conclusion that an action tried in the other State will considerably disadvantage each of them.

29 If the action proceeds to trial, having regard to the general issues, I consider it likely that the defendant may have to call as witnesses one or more of the three barristers who were variously engaged in the matter and may also have to call the accountant Mr Wiley. There is a possibility that one or more counsel may be joined to the action. Although counsel for Mr Douglas points to the legal difficulties of such a course, having regard to the general principles of a barrister's immunity from suit, in the absence of a statement of claim in this action I can not place much weight on those submissions. Instead, I take into account the possibility that the defendant may wish to join other parties and the potential inconvenience to him and to others if third party actions proceed in Western Australia.

30 Some of the difficulties as to travel both for the parties and more particularly for witnesses are now able to be overcome following the introduction of s120 and succeeding sections of the Evidence Act 1906, those provisions coming into operation on 18 January 1999. In short it is likely that evidence will be able to be taken by video link.

31 I consider that the claims of the plaintiff to have the action heard in Western Australia in equipoise with the claims of the defendant to have the action heard in New South Wales.

32 However because of my acceptance of the principle that prima facie the plaintiff has a right to have the matter determined in the forum he has chosen namely the Supreme Court of Western Australia, I do not accede to the defendant's application under the Jurisdiction of Courts (Cross-Vesting) Act 1987.

33 As a consequence the defendant's summons is dismissed.