Maysan Holdings Pty Ltd v Hasan

Representation: Counsel:
DP O’Dowd (Plaintiffs)
Solicitors:
Trump Lawyers (Plaintiff)
Sadek Lawyers (Defendants)

File Number(s): 2025/00129937

Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

1. Rule 45.1(2) of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) provides that, where an originating process filed in the Equity Division indicates that the proceedings are to be entered in one of the Division’s specialist lists, including the Commercial List, the proceedings are thereafter to be entered in that list.

2. Although the terms of sub-r (2) of r 45.1 of the UCPR are mandatory, it is clear that, in designating the Commercial List as the list in which proceedings should be entered, practitioners are expected to keep in mind the terms of paras (a) and (b) of r 45.6(1). Those paragraphs enumerate the proceedings that may be entered in the Commercial List as those either “arising out of commercial transactions” or “in which there is an issue that has importance in trade or commerce”. Proceedings which answer neither description might incline the Court to exercise its discretion to remove them from the list: UCPR r 45.2.

3. In Challenge Bank Ltd v Rain & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 at 301, Rogers CJ Comm D observed that it has long been a feature of lists such as the Commercial List that a list judge has “a discretion, even in relation to disputes falling within the definition, as to whether or not a particular action should be entered in the Commercial List” (discussing Baerlein v Chartered Mercantile Bank [1895] 2 Ch 488; Railways Commissioners of New South Wales v G & C Hoskins Ltd (1918) 18 SR (NSW) 424). By reference to his judgment in TSF Engineering Pty Ltd v Hill [1980] 2 NSWLR 105, his Honour noted that the discretion “to enter or remove matters from the Commercial List continued to be exercised so as to further the purposes for which the List had been established”, embracing the need for a specialist “forum for the litigation and resolution of disputes between merchants and traders who desired and were prepared to undertake, an early opportunity of having their disputes decided”. That discretion was unaffected by the mandatory assignment of proceedings to the Commercial Division of a commercial nature (including those arising out of a commercial transaction).

4. Here, the plaintiff seeks declaratory and injunctive relief regarding two restraints of trade it says that the defendants, its former “independent contractors”, are currently breaching. There is nothing on the face of the Summons, or in the affidavit of Ms Amour, that demonstrates an issue of importance to trade or commerce, or, on one view, a matter arising out of a commercial transaction. The proceedings seem to be fairly standard industrial proceedings, involving a former employer, or contractor, seeking to prevent her former employees, or contractors, from engaging in NDIS work for a competitor. Because the proceedings have no real correlation to either para (a) or (b) of r 45.6(1) of the UCPR, in my view, that justifies their removal from the list and entry in the General List of the Equity Division.

5. Therefore, I would remove the proceedings from the Commercial List in the exercise of the Court’s discretion under r 45.2 of the UCPR. Nonetheless, I consider it appropriate to make certain procedural orders sought by the plaintiff, lest the costs of today be wasted. As contemplated by cl 20 of Practice Note SC Eq 3, the removal of these proceedings from the list in no way affects any orders made, or directions given, prior to such removal.

Conclusion

6. For these reasons, the appropriate orders are:

7. Pursuant to r 45.2 of the UCPR, the proceedings are removed from the Commercial List.

8. The proceedings are entered in the General List of the Equity Division.

9. The matter is to proceed by way of pleadings.

10. The plaintiff is to file and serve its Statement of Claim by 8 August 2025.

11. The defendants are to file and serve their Defence by 29 August 2025.

12. The matter is listed for directions on 4 September 2025 before the Registrar in Equity.

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