Perugini v Perugini

JUDGMENT

By way of a summons filed on 5 June 2023, the plaintiff, Maria Perugini, seeks orders pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Act) to have proceedings in the District Court of New South Wales removed to this Court and thereafter transferred to the Federal Circuit and Family Court of Australia (FCFCOA). The first defendant, Aldo Perugini, consents to the orders sought. The second defendant, ARP Developments Pty Ltd (ARP), was unrepresented in the proceedings, but is wholly owned and controlled by Mr and Ms Perugini who are directors and equal shareholders. Mr Perugini is also the company secretary.

The cross-vesting legislation

Section 8 of the Act relevantly provides: "8 Orders by Supreme Court (1) Where - (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in - (i) a court, other than the Supreme Court, of the State, or (ii) a tribunal established by or under an Act, and (b) it appears to the Supreme Court that - (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Federal Circuit and Family Court of Australia or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court, or (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, … the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court."
As observed by Davies J in Amaca Pty Ltd v Mortimer [2023] NSWSC 117 at [4], the test for removing proceedings from another court in New South Wales into this Court is not a particularly demanding one: "The test for removing proceedings from another court in this State into this Court is not a stringent one by any means. s 8(1)(b)(ii) simply provides that if it appears to this Court that an order should be made so that consideration can be given to whether the relevant proceedings should be transferred to another court, then this Court may make an order under s 8 removing the proceedings into this Court."
The relevant test for the transfer of proceedings from this Court to the FCFCOA is provided by s 5(1) of the Act, which provides as follows: "5 Transfer of proceedings (1) Where - (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court, and (b) it appears to the Supreme Court that - … (ii) having regard to - (A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Federal Circuit and Family Court of Australia, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Federal Circuit and Family Court of Australia, (B) the extent to which, in the opinion of the Supreme 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 Commonwealth and not within the jurisdiction of the Supreme 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 the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be, … the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be."
In Comino v Kremetis [2023] NSWSC 32 at [70], Chen J summarised the well-established authorities considering the s 5(1)(b)(ii)(C) "residual provision", namely, whether it is in "the interests of justice" to transfer proceedings from this Court: "(1) The determination of whether it is in the 'interests of justice' under s 5(2)(b)(iii) for proceedings to be transferred depends on what is the 'more appropriate' forum for those proceedings without any particular emphasis in favour of the forum selected by the plaintiff: James Hardie & Company Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 at [87] ('Barry'); BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14] and [25]. ('Schultz'). This last matter is sometimes expressed to the effect that there is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz at [25]. (2) Although it has been suggested that there is strictly no onus upon either party to persuade the Court to transfer the proceedings or not, the better view is that the applicant for transfer has to persuade the Court to make the order it seeks: Barry at 380 [100]. That is, unless 'it appears' that the proceedings should be determined in another court, 'the court does not have power under the act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion': Irwin v State of Queensland [2011] VSC 291 at 14. (3) The Court must make a 'management decision as to which Court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute': Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714 ('Bankinvest'); Barry at [87]; Schultz at [14] and [63]. Put slightly differently, the interests of justice are 'concerned with the question of which jurisdiction is better placed to determine a dispute between the parties from a practical point of view': Opes Prime Stockbroking Ltd (In Liq) (Scheme Administrators Appointed) v Stevens [2014] NSWSC 659 at [25]. (4) Rather than the selection of the most advantageous, or least disadvantageous, forum for one of the parties, the 'interests of justice' are to be judged by objective factors to facilitate identification of the 'natural forum', in which it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party: Valceski at [69]. (5) The interests of justice include a range of matters such as the governing law, forensic advantages and disadvantages, balance of convenience to the parties and the witnesses and convenience to the Court system: Barry at [95]. (6) If 'it appears' that one court is more appropriate than the other, however so slightly, then a transfer to the more appropriate court is mandatory; no question of discretion arises: Valceski at [70]."

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (9)