REALITY CINEMA PTY LTD v CANBET LIMITED No. SCCIV-01-919 [2002] SASC 62

(b) (ii) it appears to the first court that having regard to-

it is more appropriate that the relevant proceeding be determined by that other Supreme Court."

The first court shall transfer the relevant proceedings to (that other)Supreme Court.

In Bourke & Ors v State Bank of New South Wales (1988) 85 ALR 61, Wilcox J made the following observation about "the interests of justice" in the legislation at 77:

"Finally, in connection with this sub-paragraph the court must consider 'the interests of justice'. In my opinion this phrase ought to be read widely. Under that rubric, as it seems to me, the court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in 'the interests of justice' to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation."

I considered the matter in SAGASCO South East Inc & Ors v BHP Petroleum P/L [1998] SASC 6998 at para 14 and accepted that the matters to be considered include with which court the action has the most real and substantial connection which includes not only factors such as convenience and expense but also the law governing the relevant transaction and where the parties reside and carry on business.

1 The case relates to the sale and a lease of property in NSW which is governed by legislation in that State.

2 It also relates to property, much of which is intangible and not yet identified, which is likely to be used and evidenced by use in NSW.

3 The costs of the litigation under NSW property laws and practices will be less in that State.

4 There are other proceedings in NSW which are likely to involve the same transactions and witnesses.

5 The principal place of business of the plaintiff is in NSW.

6 The evidence suggests that the alleged contract was prepared in NSW.

7 The cost to the defendant is considerably less in having the same counsel deal with the common facts in the two sets of proceedings in one location.

8 The substantial connections of the parties' places of business, the assets which are likely to be the subject matter of the contract and the majority of the witnesses of relevance will be in NSW and the law of NSW is likely to apply. It is submitted that judicial expertise in NSW real property law and practice will be needed to resolve many of the issues at hand.

9 While the courts of both States can take oral evidence from the witnesses and at similar efficiency and cost, there are real cost increments caused by transporting documents back and forth between the two sets of proceedings in different cities and there are incremental costs of running NSW conveyancing issues in a court that is not routinely familiar with them.

I add another matter. In response to a question from me, Mr Knoll asserted that he expected that if the action was transferred to the Supreme Court of NSW and was entered into the commercial list, it could be listed for trial in about 12 months and probably no later than two years. He made it plain that he could not give any assurance. Also, in that Court there is a procedure for the fast tracking of an action and it is possible that under that procedure there could be a trial before the expiration of twelve months. I expect that if the action is heard in this Court, in the ordinary course of events, it should come to trial within about 12 months unless there is an order for an urgent trial. I accept that there will not be a substantial additional delay if the action is transferred to the Supreme Court of NSW.

Before considering these matters and the submissions in opposition to the application, I mention the relevant principles to be applied.

I now turn to each of the matters raised by the respondent:

1, 2 & 3: I do not regard the first matter to be of particular importance. The primary issues are whether the parties entered into a contract and, if so, the terms and scope of that contract and whether the defendant is in breach. The law of NSW as to sale and leasing of real and personal property does not seem to me to be of much significance, but if it is, there is no reason to suppose that a judge of this Court could not understand and apply the relevant law of NSW. It is also submitted that it may be necessary to apply principles of equity applied by the Supreme Court of NSW. I can see no reason why a Judge of this Court could not apply appropriate principles of equity. The application of foreign law is familiar to courts in all jurisdictions.

I reject the contention that there will be additional costs in informing a Judge of this Court about these matters than if submissions were made to a Judge in the Supreme Court of NSW. Any difference in cost would depend upon the nature of the issue and the principles to be applied and no submission has been made which demonstrates that any such difference would exist, let alone be substantial.

4 On 4th June 2001 the former Chief Executive Officer and Managing Director of the defendant, and companies associated with it, brought proceedings against the defendant and directors of the respondent in the Industrial Relations Commission of NSW following the termination of his employment with the defendant and seeks benefits in excess of $2m. I am informed that the proceedings are pending and will go to trial. It is submitted that there are issues common to this action and those proceedings and that justice requires that the two actions be tried in Sydney so as to avoid considerable expense to the defendant in having to maintain counsel and instructions in two States and to move documentary evidence from one State to another. The plaintiff is not in any way involved in those proceedings.

I do not regard the proceedings in the Industrial Relations Commission of NSW as a matter of significance. They are proceedings arising out of issues as to the internal management of the defendant. There may be common witnesses but it is unlikely that the plaintiff will call in the trial of this action any witnesses whom the defendant will call in the proceedings before the Industrial Relations Commission. Any documents or other materials which may be needed in both proceedings may be easily moved from one State to another.

If one party is to be inconvenienced, it does not necessarily have to be the plaintiff because of the proceedings in NSW.

5 A search of records of the Australian Securities and Investments Commission as at 10th August 2001 relating to the plaintiff discloses that it is registered in this State but that its principal place of business is Shop 430 Harbourside Shopping Centre, Darling Harbour in NSW. As I understand the position, that entry is incorrect. The principal place of business of the plaintiff is in Adelaide, not in Sydney.

6 Despite having heard considerable argument, it is not clear where the contract was entered into, if there is a contract, although it is suggested that the memorandum of understanding and the memorandum of modification may have been prepared in NSW.

7 It is possible, if not likely, that the cost to the defendant will be less if the same counsel is retained in this action and in the proceedings before the Industrial Relations Commission but it is not possible to say to what extent or even that any present intention to use the same counsel will eventuate.

8 It must be acknowledged that the subject matter of the alleged contract is a business which was conducted in Sydney. It is submitted, but it is by no means certain, that the majority of the witnesses to be called at the trial reside in, or near, Sydney. I expect that the parties will not know how many and the identity of the witnesses until the pleadings are closed and necessary pre-trial procedures, such as discovery and admissions of facts and documents, have been completed. It is likely that witnesses in both States will be called but it cannot be determined at this stage if there will be savings in costs if the action is tried in NSW. I regret that I do not follow the basis of the argument that judicial expertise in NSW property law and practice will be needed to resolve many issues. I understand the submission to be that the expertise of the judiciary in this Court will be inadequate. No satisfactory basis has been advanced for that submission and it is rejected. As I have said, the application of foreign law is not a novelty in this country.

9 Upon the information placed before me, it is inevitable that documents will be transferred from one city to the other wherever the trial takes place. I am not persuaded that there will be substantial savings in costs of transferring documents, whether the trial is in Adelaide or Sydney. Documents have to be collated, copied and taken to Court. The additional cost of transferring them from one city to the other is unlikely to be substantial.

I have considered each of these matters separately as well as their cumulative effect. I do not think any sufficient reason has been advanced to transfer this action to the Supreme Court of NSW.

It is a matter of considerable importance that the plaintiff was entitled to bring the action in this Court which has jurisdiction to hear and determine the action. It has retained local counsel and solicitors. Unless there are no disputes of fact, which on present indications seems unlikely, witnesses living in, or near, Adelaide will have to be called. It is probable that the plaintiff will also have to call expert evidence, including perhaps a forensic accountant who is familiar with its financial structure and business activities and such a witness may reside in Adelaide.

Having considered the competing matters advanced respectively by the parties, I do not consider that it is in the interests of justice to transfer the action to the Supreme Court of NSW.

I dismiss both the application for summary judgment and the application to transfer the proceedings.