Solicitors:
Dentons Australia (Plaintiffs)
O'Shea Lawyers (Defendants)
File Number(s): 2024/00196068
[2]
ex tempore JUDGMENT (revised)
By notice of motion filed on 5 September 2024 the first, second and third defendants seek an order under s 5(2) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the "Act") for the transfer of these proceedings to the Supreme Court of Queensland. In support of this application, the defendants rely on the affidavit of their solicitor, Paul Michael O'Shea, sworn 5 September 2024.
The plaintiffs consent to the transfer of these proceedings and to the costs of the application being reserved. However, as Mr Bedrossian SC, who appears for the defendants, has pointed out in his written submissions, the defendants must nevertheless persuade the Court to make the orders sought. This is because under s 5(2) Act, the "first court" (being this Court) must be satisfied that it is "more appropriate", and "otherwise in the interests of justice" that these proceedings be determined in the Supreme Court of Queensland. In doing so I must have regard to the matters set out in ss 5(2)(b)(ii)(A), (B) and (C).
The background to this application is that the plaintiffs commenced proceedings in this Court on 27 May 2024, broadly concerning moneys said to be owed under guarantees of credit extended for goods supplied to various supermarkets operated by the defendants or entities controlled by them.
The crux of the defendants' application is that the Supreme Court of Queensland is the more appropriate forum in the interests of justice because these proceedings give rise to matters for determination involving the application of the law of Queensland and necessary lay witnesses reside in that State.
The defendants also point out the following: first, the plaintiffs' claims relate to financial obligations alleged to have arisen in the operation of multiple grocery stores, all of which are located in Queensland. Secondly, each 'Relationship Deed', being a contractual document relied upon by the plaintiffs in these proceedings: (i) identifies at Item 6 in Schedule 1 the "Jurisdiction" as Queensland; (ii) provides at cl 22.1 that the transaction documents are governed by the law enforced in the "Jurisdiction"; (iii) that each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in the "Jurisdiction" (although the jurisdiction is acknowledged to be non-exclusive, it is said that the law of Queensland is the proper law of the contracts); and (iv), the defendants are resident in Queensland and their books and records are located in Queensland. Mr O'Shea also deposes that all other lay witnesses likely to give evidence are residents of Queensland. As Mr Bedrossian acknowledges in his written submissions, unhelpfully perhaps, Mr O'Shea does not quantify or identify the persons whom he envisages at this early stage might be required to give evidence. However, I observe that on the current pleadings the defendants raise issues of unconscionability under the general law and deceptive or misleading conduct under the Australian Consumer Law, and having regard to those matters, it is likely that a body of lay evidence is likely to be required to make good those matters upon which the defendants carry the onus, given they have sought relief from the contracts and damages under a cross-claim.
I should observe that Mr Bedrossian has acknowledged that the pleadings are far from perfect but submits that any necessary amendment should abide the outcome of this application. If the proceedings are transferred, then the amendments will need to be made in accordance with the rules and practice in Queensland.
[3]
Principles
Section 5(2)(b) of the Act provides:
"(2) Where -
(b) it appears to the first court that -
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court,
(ii) having regard to -
(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory,
(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and
(C) the interests of justice,
it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory.
the first court shall transfer the relevant proceeding to that other Supreme Court."
The High Court of Australia's decision in BHP Billiton v Schultz (2004) 221 CLR 400; [2004] HCA 61 identifies the matters that should be taken into account when deciding the salient consideration of what the "interests of justice" require. These principles were very helpfully summarised by my colleague Lonergan J in Pilbara Ports Authority v Ashton [2019] NSWSC 1488 (at [12]). I set them out so far as they are relevant to the case at hand:
"b. The plaintiff's choice of forum, indicated by commencement of the proceedings, does not require any specific emphasis or weight to be given to it: Schultz at 425 [25] (per Gleeson CJ, McHugh and Heydon JJ); 439 [77] (per Gummow J); 466 [170] (per Kirby J); 492 [258] (per Callinan J).
c. The court hearing the application is required to decide which is the more appropriate court upon a fair balancing of all the factors defining the relevant interests of justice: Schultz at 424 [22] (per Gleeson CJ, McHugh and Heydon JJ).
d. The interests of justice are not the same as the interests of one party and there may be interests wider than those of either party to be considered: Schultz at 421 [15] (per Gleeson CJ, McHugh and Heydon JJ).
e. The more appropriate court will be the court that is the natural forum as determined by connecting factors to that forum: Schultz at 419-20 [10] (per Gleeson CJ, McHugh and Heydon JJ); Valceski v Valceski [2007] NSWSC 440 at 411 [69].
f. Relevant connecting factors include matters of convenience and expense such as the availability of witnesses, the places where the parties respectively live or carry on their business, especially if relevant to the issues, and the law regulating the relevant facts in issue: Schultz at 422-3 [18]-[19] (per Gleeson CJ, McHugh and Heydon JJ).
g. In many cases, there will be a preponderance of connecting factors with one forum so that the answer to the question of which is the more appropriate forum is clear: Schultz at 423 [19] (per Gleeson CJ, McHugh and Heydon JJ)."
[4]
Decision
I was initially concerned about the transfer of these proceedings to the Supreme Court of Queensland because it struck me that the factors informing the question of which venue was the more appropriate, on one view of them anyway, were fairly evenly balanced. I am now satisfied, however, that Queensland is the more appropriate venue and it is in the interests of justice that the proceedings be transferred.
In coming to this conclusion, I have taken into account the consent of the plaintiffs. While this is not regarded as a consent jurisdiction and the Court must satisfy itself whether the interests of justice require a transfer, clearly in a commercial case like the present where a large corporation trading nationally instructs its solicitors that it consents to moving litigation to another State, this is a matter entitled to not insignificant weight.
It has not been demonstrated that the general law applying in Queensland is necessarily different from the law of New South Wales governing matters such as the law of guarantees and the general law of unconscionability. And considerations relevant to misleading or deceptive conduct arising under Federal law are obviously common in both States.
But the consideration that there is likely to be a body of lay evidence necessary to be called in the defendants' case (and also probably in the plaintiffs' case) and that a ponderance at least of those witnesses reside in Queensland, is a very significant factor informing which is the more appropriate venue and where the interests of justice lie.
It should not be overlooked that from the statement of claim, although concerned with guarantees signed by three defendants, a large number of individual businesses are involved, and it may be expected that books of account in respect of each of those businesses will, in the aggregate, be voluminous. As the businesses are located in Queensland, so are the books. This also is a factor which, to my mind, is not insignificant.
In these circumstances, I am satisfied that the Supreme Court of Queensland is the more appropriate forum for the determination of these proceedings and that the interests of justice require the transfer.
I acknowledge that the exercise of my power to transfer is not a discretionary one; once such a view is formed, it is mandatory that I exercise the cross-vesting power (See Schultz at 434-5 per Gummow J).
For these reasons I make the following orders:
1. Under s 5(2)(b)(iii) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) these proceedings are transferred to the Supreme Court of Queensland.
2. The costs of these proceedings to date, including the costs of the defendants' notice of motion filed on 5 September 2024, are reserved for consideration by the Supreme Court of Queensland at the appropriate time.
[5]
Amendments
21 October 2024 - The heading "Decision" was added before Paragraph 9
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Decision last updated: 21 October 2024