Mariusz Zmudzinski v Cheapa Campa Pty Limited and Camper Travel Pty Limited

Judgment 1In these proceedings the First Defendant, Cheapa Campa Pty Limited ("Cheapa Campa") seeks an order that these proceedings be transferred to the Supreme Court of Queensland. The Plaintiff resists that application and the Second Defendant, Camper Travel Pty Limited ("Camper Travel") neither supports nor resists the application. 2I should first briefly indicate the background to the proceedings, although I do so on the basis that Defences have not yet been filed by Cheapa Campa and Camper Travel and substantive evidence has not yet been filed in the proceedings, and I express no views as to the ultimate merits of any party's position. 3It appears that the Plaintiff had taken out an insurance option described as "VIP Cover" in respect of the rental of a camper van and had paid the cost of that cover. Clause 28 of the rental agreement ("Rental Agreement") in turn relevantly provided that: "You will have the benefit of Cheapa Campa's insurance in respect of damage to the vehicle or damage to any third party property ... provided You ... are not in breach of this agreement." 4The Plaintiff was involved in an accident with another vehicle at Surfers Paradise Queensland and received a traffic infringement notice for failing to stop at a yellow light. Cheapa Campa has demanded the amount of $25,592.44 from the Plaintiff, apparently on the basis of the contention that its insurance does not apply where the Plaintiff received an infringement notice for failing to stop at a yellow light in respect of the accident. Another insurer has demanded a sum of $60,000 from the Plaintiff and it appears that the owner of the other vehicle involved in the accident has now commenced proceedings against the Plaintiff in the Local Court of New South Wales. 5By his Statement of Claim filed in these proceedings the Plaintiff seeks, among other things, orders refusing to enforce specified clauses of a Rental Agreement between the Plaintiff and Cheapa Campa or, alternatively, an order that the Rental Agreement be void in whole or in part, or an order to vary provisions of the Rental Agreement in whole or in part. The Plaintiff brings claims for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and also brings claims under the Contracts Review Act 1980 (NSW) and in respect of allegedly unfair contract terms under Pt VG of the Fair Trading Act (NSW) as relevantly in force. 6By Notice of Motion filed on 1 July 2011, Cheapa Campa seeks an order that the proceedings be transferred to the Supreme Court of Queensland pursuant to Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5(2) and Uniform Civil Procedure Rules r 44.5. 7Each of the parties has filed affidavit evidence in respect of the motion. Cheapa Campa relies on affidavits of Ms Amy Heselwood dated 7 July 2011 and Ms Alexis Pidcock dated 14 August 2011. Ms Heselwood and Ms Pidcock are each solicitors in the firm that acts for Cheapa Campa in the proceedings. Ms Heselwood's affidavit annexes relevant contractual documents; a police report of the accident; ASIC searches (which establish that Cheapa Campa is incorporated in Queensland, and operates from premises in Queensland and has its registered office in Queensland); and correspondence between Cheapa Campa's solicitors and Legal Aid New South Wales. Ms Pidcock's affidavit indicates that Cheapa Campa intends to bring a counterclaim seeking damages for negligence and breach of contract against the Plaintiff in relation to the accident. Ms Heselwood's and Ms Pidcock's affidavits contain no evidence as to any witnesses who are likely to be called by Cheapa Campa in the proceedings and, in particular, contain no suggestion that any officer or employee of Cheapa Campa will be called to give evidence in the proceedings. 8Camper Travel relies on affidavits of Mr Douglas McKinstry dated 11 July 2011 and Mr Toby Rundall dated 22 August 2011. Mr Flecknoe-Brown, who appears for Camper Travel, has indicated that these affidavits are filed in order to draw relevant factual matters to the Court's attention in circumstances where, as I noted above, Camper Travel does not actively support or resist the application for the transfer of the proceedings to Queensland. Mr McKinstry's affidavit identifies two witnesses proposed to be called by Camper Travel, both of whom reside in the Philippines. Mr Rundall's affidavit identifies material issued by Camper Travel referring to its business address in Queensland. 9The Plaintiff relies on his affidavit and two affidavits of Ms Susan Grey, a solicitor employed by Legal Aid New South Wales, dated 15 July 2011. The Plaintiff gives evidence that he resides in New South Wales; that he made enquiries in respect of the hire of the camper van and received responses to those enquiries while he was situated in Sydney; that he had conversations with a representative of Camper Travel while he was in Sydney; that he collected the camper van from premises in Sydney, and, if he signed the rental agreement (which he does not recall doing), he did so in Sydney. He also gives evidence that he was involved in a motor accident in Surfers Paradise in Queensland and received a traffic infringement notice for failing to stop at a yellow light. His evidence is that he and his wife do not have family members or close friends in Australia; his wife is expecting their second child in November 2011; and he identifies a concern that the extra time involved in travel to Queensland would extend the absence from work required to give evidence in the proceedings. He also gives evidence that he could not afford to have his family to join him if he was required to give evidence in Queensland, so that his wife would be left at home with two young children and without family support in the event of an emergency and that he is not in a financial position to travel to Queensland. I should note that I declined to give leave to Cheapa Campa to cross-examine the Plaintiff on matters relating to his business interests and financial position in respect of the motion, for reasons which I have set out in an earlier judgment, and I do not need to have regard to the Plaintiff's evidence of his financial position to reach my decision in respect of the motion. Had I had regard to that evidence, it would have further supported the decision I have reached on the grounds set out below. 10Ms Grey's affidavit of 15 July 2011 indicates that legal representation will be made available by Legal Aid New South Wales to the Plaintiff if the proceedings are transferred to Queensland, but Legal Aid New South Wales will not cover his travel or other costs associated with proceedings in Queensland. Ms Grey's further affidavit sworn 16 August 2011 indicates that proceedings have been commenced against the Plaintiff by the owner of the other vehicle involved in the accident in the Local Court of New South Wales, so that a successful application by Cheapa Campa to transfer the proceedings to Queensland would result in the Plaintiff facing proceedings in two separate jurisdictions. 11The evidence filed by the Defendants emphasises the fact that the website of Camper Travel and correspondence issued by Camper Travel shows an address in Queensland, and a Queensland address is also shown for Cheapa Campa in the Rental Agreement. The Rental Agreement also discloses that Cheapa Campa is an associated company of Apollo Motor Homes Pty Limited which, on the Plaintiff's uncontested evidence, maintains a rental location in New South Wales and made the camper van available for collection by the Plaintiff in New South Wales. Cheapa Campa contends that the Plaintiff must be taken to have known that he was dealing with a company in Queensland and I will proceed on that basis, with the qualification that he must also have known that he collected the camper van from premises in New South Wales. 12Cheapa Campa relies on the terms of the Rental Agreement which contain an acknowledgement, presumably in a standard form, that the Plaintiff had read, understood and accepted that agreement. It relies on a provision in that agreement providing for the choice of Queensland law and requiring that any proceedings be brought in the Supreme Court of Queensland. It also points to the fact that the accident occurred in Queensland and identifies its contention that the Plaintiff's receipt of an infringement notice for failure to stop at a yellow light deprived him of the insurance in the manner to which I have referred above. 13In determining this application I am required to consider the interests of justice and I proceed on the basis that Cheapa Campa bears no onus of proof and there is no presumption in favour of New South Wales as the jurisdiction in which the proceedings were commenced: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [77]; Livestock Transport (Sydney) v Commonwealth of Australia [2011] NSWSC 283 at [14]. 14Cheapa Campa submits that the interests of justice are served where proceedings are heard in the Court which is the "natural forum" being the place "with which the action has the most real and substantial connection", which will usually be the place of the wrong or of the contract particularly where that is the residence of the parties: BHP Billiton Ltd v Schultz above [70]. Cheapa Campa also contends that the agreement between the parties as regards jurisdiction, the substantive law governing the jurisdiction and matters of convenience such as the availability of witnesses, are an indication of the "natural forum". Cheapa Campa also rightly accepts that the Court is not obliged to grant or refuse a transfer application because of an exclusive jurisdiction clause. 15Cheapa Campa contends that the Plaintiff asks the Court to ignore the effect of the contractual choice of jurisdiction. In my view, that is not the substance of the Plaintiff's position; rather, the Plaintiff's position is that, notwithstanding the choice of jurisdiction, the hearing of these proceedings in New South Wales is consistent with the interests of justice having regard to the matters and to the other evidence which is before the Court. Moreover, in my view, any argument that the parties should be "held to their bargain" in respect of an exclusive jurisdiction clause has less weight in respect of a standard form contract than in a negotiated contract: Asciano Services Pty Limited v Australian Rail Track Corp Ltd [2008] NSWSC 652 at [l8]; Taurus Funds Pty Limited v Aurox Resources Limited [2010] NSWSC 1223. 16Cheapa Campa also contends, and I accept, that the substantive law governing the transaction is a relevant factor in determining the "natural forum". Cheapa Campa submits that the proper construction of the Rental Agreement is in issue and that the agreement is governed by the laws of Queensland, so the natural forum for the dispute is Queensland. However, it seems to me that the substance of the Plaintiff's case does not in fact turn on the construction of the Rental Agreement, but rather on allegations that the representations which he contends were made to him in New South Wales were misleading or deceptive or likely to mislead or deceive and that relevant provisions of the Rental Agreement are liable to be set aside or modified by reason of New South Wales legislation including the Contracts Review Act and the Fair Trading Act . 17Cheapa Campa also contends, and I also accept, that the fact of the need to call parties and witnesses from interstate is a "highly relevant matter" in determining where the interests of justice lie: Wraight v Tasplan Ltd [2010] NSWSC 1393 at [3]. This raises the question where the witnesses who may be required to give evidence are resident. In this regard: (a) As I noted above, the affidavit evidence led by Cheapa Campa does not indicate any intention to call any of its officers or employees to give evidence, so no issue arises as to where they are resident. (b) Cheapa Campa relies on the fact that two employees of Camper Travel are not resident in New South Wales. However, the affidavit evidence filed by Camper Travel indicates that both of those persons are resident in the Philippines, so that the conduct of the proceedings in New South Wales would be no less convenient or inconvenient for them than the conduct of the proceedings in Queensland. It may be that those witnesses give evidence in person by travelling to Sydney or Brisbane or they may be permitted to give evidence by videolink. In either event, it seems to me that the choice of jurisdiction between New South Wales and Queensland is neutral as between those witnesses. (c) Cheapa Campa also indicates that a witness to the accident was, according to the police report, resident in Queensland in December 2010 when the accident occurred. However, the affidavit evidence filed by Cheapa Campa and Camper Travel does not indicate that either of them intends to call that witness and there is no evidence of where he is now resident. I do not think I should infer that witness will be called in the absence of affidavit evidence to that effect, where there may be good reasons why the Defendants would not take that course or would at least reserve their position in that regard. (d) On the other hand, the Plaintiff is resident in New South Wales and Ms Grey gives evidence that the driver of the other motor vehicle involved in the accident (who may or may not be required to give evidence) is also resident in New South Wales and has commenced proceedings against the Plaintiff in New South Wales. 18So far as the circumstances of entry into the contract are concerned, there appear to be three relevant witnesses, two of whom are resident in the Philippines and one in New South Wales. So far as the circumstances of the collision become a relevant matter in the proceedings, there appear to be three potential witnesses, two of whom are resident in New South Wales (the Plaintiff and the other driver) and one whose present location is not disclosed by the evidence before me, although he was resident in Queensland in December 2010. I do not consider that the convenience of the witnesses favours the conduct of the proceedings in Queensland and, on balance, it seems to me that the convenience of the witnesses favours the conduct of the proceedings in New South Wales. 19In my view, the evidence before me does not lead to the conclusion that the interests of justice would be better served by the conduct of these proceedings in the Supreme Court of Queensland. A substantial issue in the proceedings is whether representations alleged to have been made to the Plaintiff in New South Wales were misleading or deceptive or likely to mislead or deceive and whether relevant provisions of the Rental Agreement are liable to be set aside or modified by reason of New South Wales legislation. I consider that the choice of law and the submission to the jurisdiction of Queensland should be given limited weight where the contract was not the product of negotiation between the parties. As I have noted above, Cheapa Campa does not seek to identify any substantive disadvantage to it arising from the conduct of the proceedings in New South Wales and Camper Travel neither supports nor opposes the application. By contrast, the Plaintiff's evidence identifies real and substantive disadvantages to him from the transfer of the proceedings to Queensland which I may properly take into account in determining where the interests of justice lie: Livestock Transport (Sydney) Pty Ltd v Commonwealth [2011] NSWSC 283 at [39]. On balance, the convenience of the witnesses favours the conduct of the proceedings in New South Wales. 20In these circumstances, I consider that the interests of justice will best be served by the proceedings not being transferred to the Supreme Court of Queensland. I therefore dismiss the motion. 21The Plaintiff seeks its costs of the motion. The ordinary rule is that costs should follow the event. Cheapa Campa has been unsuccessful in its application for transfer of the proceedings and the Plaintiff has correspondingly been successful in resisting that application. I consider that Cheapa Campa should pay the Plaintiff's costs of and incidental to the motion. 22Camper Travel also seeks its costs of the motion. It initially contended that those costs should be costs in the cause as against the Plaintiff. I do not consider it appropriate to make that order since it does not seem to me that the Plaintiff should be required to pay the costs of an application which he has successfully resisted even if he is unsuccessful in the proceedings. Alternatively, Camper Travel contends that Cheapa Campa should pay its costs of the motion. I am not inclined to make that order where there has been no controversy as between those parties. I will order that there be no order as to Camper Travel's costs of the motion. 23In summary, I order that: