Michael Anthony Luxury Cars Pty Ltd v Connexwire Ltd

Introduction

1. This matter came before me on 26 June 2019 as an interlocutory application for, in short, transfer of proceedings currently pending in the District Court of New South Wales ("the District Court") to the Supreme Court of Queensland, pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the Act).
2. In a nutshell, by way of a statement of claim filed on 1 November 2018 in the District Court, the substantive plaintiff, Connexwire Limited (Connexwire), seeks relief against the substantive first defendant, Michael Anthony Luxury Cars Pty Ltd (Luxury Cars), and in the alternative against the substantive second defendant, Mr Michael Anthony (whom I understand to be the controlling mind of the company that bears his name).
3. The primary claim is for a little over $120,000 for damages; or, in the alternative, an identical sum pursuant to the Sale of Goods Act 1896 (QLD); or, in the further alternative, pursuant to the Australian Consumer Law (the ACL).
4. Those claims are based upon the propositions that the plaintiff purchased a 1967 Mercedes-Benz motor vehicle from the first defendant for a considerable sum of money; it turned out to be seriously defective, including with regard to rust; the plaintiff sought to have the first and second defendants rectify the defects; they failed to do so; and the plaintiff should be recompensed accordingly.
5. The two defendants in the District Court are the two plaintiffs or applicants on the summons in this Court seeking transfer. The plaintiff in the District Court is the respondent before me. In light of those reversed roles, for ease of comprehension I shall simply refer to the parties as Connexwire (or sometimes "the plaintiff"), Luxury Cars, and Mr Anthony (or the latter two sometimes collectively as "the defendants").
6. By the end of the hearing, counsel were largely in agreement that the substantive question for me is whether or not I am satisfied that it is in the interests of justice for me to grant the transfer sought by the two defendants, and that determination of that question is a "nuts and bolts" analysis or evaluative judgement of a large number of countervailing factors, legal, logistical, and personal.

Background

1. The following was not disputed for the purposes of this interlocutory question.
2. The District Court claim of Connexwire is that, on or about 16 June 2017, Connexwire and Luxury Cars entered into a contract for the purchase by the former and the sale by the latter of a 1967 Mercedes Benz motor car (the vehicle).
3. The claim is that the vehicle supplied by Luxury Cars to Connexwire contained defects. They included the presence of rust, the unsatisfactory state of the underside of the car, and the incorrect gapping of the doors, bonnet and boot lid (collectively, the defects).
4. In the latter half of 2017, Connexwire made requests to Luxury Cars and Mr Anthony to rectify the defects, and also sent a quote for the rectification of the defects. However, Luxury Cars and Mr Anthony did not accept the quote, on the basis that it was purportedly for the full restoration of the vehicle, rather than mere rectification work. The defendants also requested that they be given an opportunity to arrange for an inspection of the vehicle by an individual inspector.
5. On 27 March 2018, when it was becoming clear that Connexwire was dissatisfied and may institute proceedings against Luxury Cars and Mr Anthony, the solicitor for the two (at that stage) putative defendants wrote to the solicitor for Connexwire, requesting that any such proceedings be commenced in the District Court of Queensland.
6. On 1 November 2018, the plaintiff filed a statement of claim in the District Court of this State. The substantive proceedings concern a contractual claim for damages pursuant to which the plaintiff seeks an order that Luxury Cars or Mr Anthony pay a sum of damages amounting to $123,018.20 (the sum).
7. As I have said, the plaintiff also seeks two forms of alternative relief, one in accordance with Queensland legislation and the other in accordance with the Australian Consumer Law.
8. The alternative forms of relief sought were as follows: orders against the first defendant or the second defendant for damages valued at a sum, in accordance with s 54 of the Sales of Goods Act 1896 (QLD); or orders against one or other or both for damages valued at the sum pursuant to a claim for misleading or deceptive conduct under s 236 of the ACL.
9. On 14 November 2018, the then-solicitors for the defendants wrote to the legal team of the plaintiff asserting that the District Court of New South Wales is not the appropriate Court to hear the dispute, and the law of New South Wales is not the appropriate law governing the dispute. Further, it was said that the defendants would not file a defence until the determination of an application for the transfer of the proceedings to the Supreme Court of New South Wales and thereafter to the Supreme Court of Queensland.
10. On 18 January 2019, the legal team of the plaintiff wrote back to the then-solicitors for the defendants indicating that it would not be making any application to transfer the proceedings to Queensland.
11. On 1 February 2019, the defendants filed a notice of motion in the District Court. It sought orders staying the substantive proceedings, and transferring them to this Court for determination of the appropriate geographical jurisdiction.
12. On 22 February 2019, the District Court made orders to the effect that the substantive proceedings in the District Court be stayed pending determination of a transfer to the Supreme Court of New South Wales and an application to the Supreme Court of New South Wales to cross-vest the substantive proceedings to the Supreme Court of Queensland.
13. On 8 March 2019, the first and second defendants filed their summons in this Court, seeking to remove the substantive proceedings to the Supreme Court of New South Wales (pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW)) for determination of the appropriate jurisdiction; and thereafter, to transfer the substantive proceedings to the Supreme Court of QLD (pursuant to s 5(2) of the Act).
14. I record as a further background fact that Connexwire is based in Auckland, New Zealand. So is its controlling mind, Mr Matthew Williams.
15. On 10 May 2019 (that is, after the commencement of the proceedings for transfer in this Court on 8 March 2019), the solicitor for Connexwire qualified an expert with regard to motor vehicles who is located in the Sydney suburb of Gymea.

Submissions and determination

1. A number of aspects of this matter in combination affirmatively satisfy me that this matter should indeed be transferred to the Supreme Court of Queensland, with the intention, of course, that it thereafter be immediately further transferred to the District Court of Queensland.
2. In setting out the reasons for that opinion of mine, I shall incorporate my acceptance or rejection of the various helpful submissions made by counsel for Connexwire opposing the view to which I have come. To the extent necessary, I shall also recount the submissions of counsel for Luxury Cars and Mr Anthony, the majority of which I accept, but some of which I reject.
3. First, counsel for Connexwire submitted that the Act is the sole relevant statute for the determination of this application. I accept that proposition, and reject the submission of counsel for Luxury Cars and Mr Anthony that the provisions of s 20 of the Service and Execution of Process Act 1992 (Cth) somehow inform the question. In my opinion, it is a matter of simply focusing upon the relevant provision of the Act.
4. In that regard, counsel for Connexwire specifically referred to s 5(2)(b)(ii)(A) and (B) of the Act as containing the operative test: whether it is "in the interests of justice" to transfer the proceedings. I agree that that is the relevant legislation, and that that is the relevant test.
5. Secondly, counsel for Connexwire interpreted the test as follows. The test requires the Court to consider whether at the time of the application, it is in the interests of justice. Furthermore, the Court may exercise its discretion to transfer the proceedings only if it is affirmatively satisfied that it is in the interests of justice so to order.
6. Again, I respectfully agree: in my opinion, it is incumbent upon the applicants, not least as the moving parties on their summons, to demonstrate that the proceedings, once commenced in New South Wales, should be transferred out of this State.
7. I also agree that it is significant that Parliament has used the present tense in calling upon me to assess where the interests of justice lie. Having said that, as counsel for Connexwire and I agreed at the hearing of the summons, the past can surely inform the present, and I am not called upon to consider a sliver of time without the context of preceding events. To give an example, I think it is certainly relevant to my determination that, when proceedings were foreshadowed many months ago, the Queensland-based lawyers of the Queensland-based defendants wrote to the New Zealand-based substantive plaintiff and requested that proceedings be commenced in Queensland.
8. Thirdly, it was submitted by counsel for Connexwire that, by way of the use of the word "determined" in s 5(2)(b)(ii)(B), Parliament has called upon me to compare the interests of justice in the matter being "determined" (in the sense of being finalised, not merely transferred) in the District Court of New South Wales and the Supreme Court of Queensland.
9. But in the absence of any case law able to be found by counsel to support that, with respect, very counter-intuitive reading of the central provision of the Act (which must have been applied thousands of times since its commencement thirty years ago), I do not adopt it. In the absence of a judgment to the contrary, I believe that the central provision does not call upon me to assume for the purposes of the interlocutory question that, if the proceedings are transferred to the Supreme Court of Queensland, they must remain there.
10. Fourthly, quite apart from focusing on the words of the Act, in submitting that the comparison must be made with the Supreme Court of Queensland as opposed to the District Court of that State, counsel submitted that there was a jurisdictional limitation upon the ability of that District Court to deal with causes of action that arise wholly or partly outside of that State. It was said that the Queensland analogue of s 47 of our District Court Act 1973 (NSW) is less expansive. That was another basis upon which it was said the relevant comparison is between our District Court and the Supreme Court of Queensland: the thesis being that, however convenient and expected it might be for the District Court of Queensland to deal with this claim in the order of $100,000 with regard to a defective motor vehicle, it could well be that it will be incapable of doing so.
11. I respectfully reject that submission. As I remarked at the hearing, the thesis demonstrates precisely the kind of disadvantage that can be important in matters such as these: in order to truly determine the submission, I would require not only a familiarity with the Supreme Court Act and District Court Act of this State, and their applicable procedural rules, but also the relevant Acts and relevant rules of Queensland. But even bearing in mind my undoubted lack of expertise in the latter regard, I cannot accept that there is no mechanism whereby a claim for something over $100,000 with regard to a motor vehicle allegedly suffering from rust and other defects cannot be dealt with other than in the superior court of the State of Queensland. To remove countless negatives from the preceding proposition: I am confident that, within the procedural law of that State, a way will be found for this dispute to be resolved in the District Court, or perhaps even a lesser Court, of Queensland. To give but one example, ss 25(2) and 28(1)-(2) of the Civil Proceedings Act 2011 (QLD) suggests that that can be done.
12. Fifthly, the submission was made by counsel for Connexwire that the reliance in the statement of claim upon legislation from a different jurisdiction was an "entirely neutral" factor in this application. That was said to be because the Sale of Goods Act of Queensland is relevantly identical to our own; that that relevant identicality constitutes a consistent body of statute law that is to be interpreted consistently throughout our federation; and, that accordingly there is no advantage or disadvantage in the Queensland Sale of Goods Act being interpreted and applied by a judge of Queensland, New South Wales, or any other part of Australia.
13. Again, I respectfully disagree. It may well be that the Sale of Goods Acts of our State and of Queensland are very similar; that does not mean that they are part of an overarching interlocking structure of State legislation that is to be interpreted uniformly throughout the Commonwealth of Australia in the sense discussed in Australian Securities Commission v Marlborough Gold Mines Ltd 177 CLR 485; [1993] HCA 15. A sufficient basis for coming to that finding is the concession made at the hearing by counsel for Connexwire that, although similar, the two pieces of legislation are not identical in all their provisions. In accordance with Project Blue Sky v Australian Broadcasting Authority 194 CLR 355; [1998] HCA 28, statutory interpretation is an exercise in analysis of "text, context and purpose". If the context of a provision by way of its broader Act is different, it is in my opinion possible that an actionable legal wrong pursuant to the statute is also different, at least with regard to a shade of meaning.
14. Sixthly, counsel for Connexwire contended that, even leaving aside the assertion of relevant identicality, the New South Wales and Queensland Sale of Goods Acts are very similar and not overly complicated pieces of legislation, with the result that it would not be difficult for a judge of the District Court of New South Wales to understand, interpret, and apply the Sale of Goods Act of Queensland. Again, the point was that, even accepting that part only of the claim is based upon Queensland legislation, there is neither disadvantage nor advantage in the matter being resolved in New South Wales or Queensland; that aspect of the statement of claim, it was said, is intractably neutral.
15. In my opinion, this submission is true as far as it goes. By that I mean, I accept that a judge of the District Court of New South Wales would, with respect, be perfectly capable of interpreting the Sale of Goods Act of Queensland, even if, as one would expect, there is a body of case law about it that differs - at least to some degree - from the body of case law about our analogous Act.
16. Even so, as I have said, difficult aspects of the resolution of this summons, founded upon an assessment of procedural and substantive aspects of the law in Queensland, demonstrate to my mind that, other things being equal, it is preferable, indeed desirable, for judges to interpret and apply legislation of their own States or Territories, with which one would very often expect them to have a deep familiarity as law student, solicitor, barrister, and judge.
17. Seventhly, counsel for Connexwire submitted that the determination of the substantive proceedings between the parties would involve the exercise of Federal jurisdiction by whichever court.
18. Again, in my opinion that submission is correct, as far as it goes. It is quite right that one of the claims against both defendants is pursuant to the ACL. But it is clear from the statement of claim that, as I have said, another claim is founded upon the legislation of a different State.
19. In relation to the question of whether it is in the interests of justice to transfer the proceedings to the Supreme Court of Queensland, counsel proffered the following further reasons.
20. First, the District Court of New South Wales is a specialist trial court for dealing with "mid-quantum" civil disputes. So much may be accepted; but so is the District Court of Queensland, and I have already expressed my confidence that this matter would not remain in the Supreme Court of Queensland.
21. Secondly, ordinary matters of directions in the District Court of New South Wales can be conducted through the Online Court system, whilst the Supreme Court of Queensland has no such facility.
22. Thirdly, the District Court of New South Wales has lower allocation and trial fees than the Supreme Court of Queensland. Again, that may be so, but I am confident that that is not the relevant comparison to be drawn here.
23. Fourthly, the legal team of the respondent is based in New South Wales. It was submitted that inquiries by the respondent seeking alternative counsel in Queensland have been unsuccessful, and the instructing solicitors would withdraw from the matter if it were transferred to Queensland, thereby raising the issue of access to legal representation.
24. Fifthly, Mr Williams has also given evidence by affidavit that it is cheaper to fly from Auckland to Sydney than from Auckland to Brisbane. I interpolate my response that, even accepting that that is the case, I cannot accept that the difference in cost would be great.
25. Sixthly, the expert qualified by the respondent is based in Sydney, whilst the director of Connexwire is based in New Zealand.
26. Addressing some of those factors, again, I am prepared to accept for the sake of argument that it is possible that the digital procedures of our District Court are more advanced, perhaps, than those of the District Court of Queensland. And finally I accept that Connexwire would suffer inconvenience if its solicitors withdrew; having said that, there is no evidence of impecuniosity on the part of Connexwire and Mr Anthony, and I am confident that representation would be available to them north of the border. But all of those in my opinion are small matters, bearing in mind the following factors.
27. The transaction whereby the vehicle was bought and sold has no connection with New South Wales.
28. The defendants possess no connection whatsoever with New South Wales.
29. The plaintiff and its controlling mind, Mr Williams, are based in New Zealand. The only inherent connection with New South Wales of which he has spoken is the presence of his family in Sydney. But these proceedings would hardly be expected to be traumatic and calling for the emotional support of relatives during any hearing.
30. It is also true that an expert has been qualified who is based in a Sydney suburb. But that step was taken after the defendants requested, in my opinion on a sound basis, that proceedings be commenced in Queensland, and indeed after this summons seeking transfer had been filed. If an inconvenience in that regard has arisen, in other words, it is in my respectful opinion of the plaintiff's own making, and has a negligible role in informing the interests of justice.
31. Finally, it is regrettable if the current legal team of the plaintiff would, if the matter were transferred, withdraw from the matter. That seems to be on the basis that they would feel uncomfortable with regard to their expertise in litigating the matter in a different jurisdiction. In a sense, I must say that that approach goes some way to confirming my opinion of the subtle but important differences between Australian jurisdictions, and I respectfully think that the response of counsel for Connexwire that one must draw a sharp distinction between substantive law and procedural law is by no means a complete answer to my concerns. But, as I have said, I do not believe the substantive plaintiff will be bereft of legal assistance.
32. In summary then: this matter has nothing inherently to do with New South Wales. Its resolution will require the application of a statute of a different jurisdiction of Australia. The defendants are based in Queensland. The plaintiff is based overseas. Forensic steps were taken that created a connection with this State after the defendants had placed the plaintiff on notice that they resisted the commencement of proceedings here. I cannot accept that, if transferred to Queensland this straightforward claim regarding something over $100,000 will remain in perpetuity in the superior court of Queensland. In my opinion, the applicants on the summons have comfortably demonstrated that the interests of justice call for the orders of transfer proposed in the summons.

Costs

1. Despite my wish to receive submissions on costs at the time of the substantive hearing, I was told that there may be some complexity about the question. For that reason, I indicated that costs would be reserved, and I have made an order to that effect. In order to resolve that question expeditiously in chambers, and without making formal logistical orders, I request the provision of written submissions about the topic within five business days of today of no more than four pages in length, annexing no more than five documents, from counsel for the successful plaintiffs on the summons, and submissions subject to identical restrictions four business days after that from counsel for Connexwire. Unless one party demonstrates in writing a compelling need for a very brief hearing about the question, it will be resolved in chambers.

Orders

1. I make the following orders in general accordance with the summons filed in this court of 8 March 2019: 1. Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) and s 8(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), proceedings 335411 of 2018 in the District Court of New South Wales are removed to the Supreme Court of New South Wales for a determination of appropriate jurisdiction. 2. Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), these proceedings are transferred to the Supreme Court of Queensland. 3. Costs reserved.

Amendments 22 August 2019 - Cover page -Counsel for the first and second applicant's name is amended to John Lo Schiavo. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2019