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[2010] QCA 293
General information, not legal advice.
Court of Appeal (Qld)
2010-10-22
Chief Justice and Muir JA and Philippides JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Original judgment source is linked above.
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - IN GENERAL - where appellant, the defendant in the proceeding, appeals against primary Judge's dismissal of its application for an order staying the plaintiff's proceeding, or an order that the proceeding be transferred to the Supreme Court of South Australia under the cross-vesting legislation - where there is an issue as to the competence of the appeal - where appeal brought against refusal of transfer is incompetent because of s 13(a) Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) - where appellant submitted that the appeal was against both the primary judge's refusal of a stay and refusal of a transfer - where the appellant further submitted that the appeal is competent insofar as it relates to the refusal of stay - whether the appeal is incompetent
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE - GENERALLY - where appellant seeks to transfer Queensland proceedings to Supreme Court of South Australia pursuant to the cross-vesting legislation - where the appellant company is a builder and property developer with head office in South Australia - where the appellant company has a branch office in Queensland - where the respondent was appointed as general manager of its Queensland operation by a written contract in November 2007 - where the respondent's proceeding arises from the termination of that contract in June 2009 - where the relevant agreement contained an exclusive jurisdiction clause - where the majority of witnesses that would be required to give evidence reside in Queensland - where all bookkeeping and accounting services in relation to the Queensland operation were undertaken in the head office in South Australia - whether it is more appropriate or in the interests of justice that the proceeding be transferred to South Australia
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited
Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711, cited
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited
Schmidt v Won & Ors [1998] 3 VR 435, applied
World Firefighters Games Brisbane v World Firefighters Games Western Australia Inc & Ors [2001] QSC 164, applied
**[1] The appellant, the defendant in the proceeding, appeals against the learned primary Judge's dismissal of its application for an order staying the plaintiff's proceeding, or an order that that proceeding be transferred to the Supreme Court of South Australia under the cross-vesting legislation.
[2] The order for transfer was sought under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), which provides:**
(a) a proceeding (the relevant proceeding) is pending in the Supreme Court (the first court); and
(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; or
(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; and
(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."
**[3] There is an issue as to the competence of the appeal. Section 13(a) of the Jurisdiction of Courts (Cross-vesting) Act provides that "[a]n appeal does not lie from a decision of a court...in relation to the transfer or removal of a proceeding under this act".
[4] Having referred us to that provision Mr Sheaffe, who appeared for the appellant, relied on its being an appeal against the refusal of a stay, as well as against the refusal of a transfer, while acknowledging that the same considerations were urged in support of the stay application as were urged in relation to the transfer application. He submitted however that the appeal is competent insofar as it relates to the refusal of a stay.
[5] Insofar as the appeal is brought against the refusal of a transfer, it is plainly incompetent because of s 13(a).
[6] As to the challenge to the refusal of a stay, where the provisions of the cross-vesting legislation are engaged, as here, the appropriate order is transfer or a refusal to transfer as between one Australian jurisdiction and another. The separate consideration of whether a proceeding should be stayed, rather than transferred, would only arise were the proceeding frivolous, vexatious or oppressive, or an abuse of process.
[7] The point was made by the Victorian Court of Appeal in Schmidt v Won & Ors [1998] 3 VR 435, 453-4 per Ormiston JA:**
"Subject always to the power of the court to stay frivolous, vexatious or oppressive proceedings or any which amount to an abuse of process (the categories of which can never be closed), the Voth principle should be considered as having no continued practical application so far as the exercise of jurisdiction as between the several State Supreme Courts. So the ordinary remedy of parties, who are served in Australia with process issued out of the Supreme Courts of States or Territories other than that in which they reside and who wish to complain that the Supreme Court of that other State or Territory is not the appropriate forum in which the litigation should be heard, is to seek transfer pursuant to the provisions of s5 (2) of one of the State Cross-Vesting Acts. In the light of the complex and sophisticated scheme now in operation in this country, a stay of the kind contemplated by Voth must be seen as an inappropriately heavy-handed means of ensuring that issues are determined in the proper forum, ie in the court within Australia most appropriate to hear the action and most convenient to the parties for that purpose. Transfer under the cross-vesting legislation should be seen as now providing the necessary and appropriate weapon to achieve the same end by transferring litigation to a more appropriate jurisdiction within Australia."
[8] In similar vein a decade earlier, in the New South Wales Court of Appeal's decision Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711, 725-6, Rogers A-JA said this:
"It is important that full effect be given by the courts to the imaginative and detailed code for ensuring that throughout Australia disputes are dealt with by the one court and that be the court most appropriate for the particular dispute. Consistently with the preservation of dual State and Federal court systems and with State courts dispensing justice within the State boundaries, there has been a legislative recognition of the need to transcend State boundaries in appropriate cases. No longer is it appropriate to regard the court of another State as a 'foreign' court.
One consequence is that the principles of forum non conveniens, applied in circumstances where the competition is between an Australian and a non-Australian court, have no role to play in the resolution of applications made under the legislation or in its interpretation. Legislation prescribes the criteria whereby such applications are to be determined. The criteria are rather more specific in some respects but in referring to the 'interests of justice', call for considerations of a more general kind than the judicially established rules of forum non conveniens."
[9] In that context, Philippides J helpfully synthesized the correct approach in World Firefighters Games Brisbane v World Firefighters Games Western Australia Inc & Ors [2001] QSC 164, paras 26-29:
"[26] It is clear that the cross-vesting legislation operates as a scheme, investing each State court with the jurisdiction of each other State court, and creating a system by which matters are to be transferred between courts for determination in the most appropriate forum. I agree with the applicant's submission that the Acts do not contemplate that proceedings would simply be stayed if it were found that proceedings were commenced in an inappropriate court and that the appropriate order in such a case would be one transferring the proceedings.
[27] Queensland has adopted the Bankinvest approach and it is appropriate that the Schmidt v Won approach to s5(2)(b) should also be followed. The Schmidt v Won approach has implications which extend beyond the forum non conveniens context. The rationale in that case extends also to the common law jurisdiction to stay actions commenced in one State Supreme Court in breach of an exclusive jurisdiction clause conferring jurisdiction on the courts of another State. Such an approach requires me to consider the question to be determined, not in the context of the common law jurisdiction concerning exclusive jurisdiction clauses, but in accordance with the principles applicable under the Act.
[28] It should be noted that there is presently no application for transfer under the cross-vesting legislation, but given my view as to the residual common law jurisdiction, the matter nevertheless falls to be considered under the principles applicable under the cross-vesting legislation. I also note that counsel in their oral submissions treated the application essentially as if it were one to be decided under the Act.
[29] I also accept that under that legislation the appropriate order, were I to find that proceedings should not be permitted to continue in Queensland, is one transferring the proceedings to the appropriate jurisdiction, rather than one staying the proceedings generally. I note that under s5(7) of the Act an order for transfer may be made by the court on its own motion."
**[10] In this case, the primary Judge canvassed the factual considerations in the context of the cross-vesting legislation, then expressed a composite decision both refusing a stay and refusing transfer. It was not contended that the proceeding was vexatious, frivolous or oppressive, or an abuse of power, and the Supreme Court of Queensland plainly had jurisdiction. There was therefore no scope for any stay: the only appropriate order was for transfer or a refusal of transfer. Consistently with that, the Judge gave no separate consideration to the question of imposing a stay, and his order refusing it was of a purely formal character. Accordingly, the instant appeal should in substance be characterized as an appeal against a decision "in relation to the transfer" even though it also, in an incidental and purely formal way, involved the refusal of a stay. The appeal is therefore incompetent.
[11] I will nevertheless address the submissions made in relation to the merit of the appeal.**
**[12] The appellant company is a builder and property developer primarily operating in South Australia, although since 2006 it has also operated in South East Queensland. By November 2007, 11 per cent of its business was in Queensland, and it established a branch office in Southport. It appointed the respondent as general manager of its Queensland operation, by a written contract in November 2007. The respondent's proceeding arises from the appellant's termination of that contract in June 2009. The respondent contends that the appellant thereby repudiated the contract, and that the respondent accepted the repudiation, claiming $231,168 monies payable under the contract together with $22,210 as damages for breach.
[13] The respondent filed its claim on 18 August 2009. The appellant filed a conditional notice of intention to defend on 24 September 2009, relying on the following exclusive jurisdiction clause in the agreement:**
"14. Governing Law - This Agreement shall be governed by and construed in accordance with the laws enforced for the time being in the State of South Australia and the parties hereto submit to the exclusive jurisdiction of the Courts of South Australia."
and contending that the Supreme Court of Queensland is not the most convenient jurisdiction for the determination of the claim.
**[14] The respondent's director, Mr Donald, referred in his affidavit to four of the grounds advanced by the appellant as justifying the appellant's termination of the agreement: that he (or the respondent) had secured the service of employees of the appellant to work on a private construction for Mr Donald at Calypso Bay; that purchase orders and documentation in relation to the Calypso Bay project were not furnished to the appellant's accounts department; that he diverted the appellant's usual contractors and suppliers to the Calypso Bay construction, to the detriment of the appellant's business; and that suppliers were given to understand that Calypso Bay was to be a display home. Mr Donald then names 17 persons resident in Queensland "able to give evidence relevant" to those matters.
[15] In response, the appellant's finance and administration manager named four residents of South Australia who could give relevant evidence. Other evidence was that all bookkeeping and accounting services in relation to the Queensland operation were undertaken in the head office in South Australia.
[16] In his reasons for judgment, the primary Judge set out s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act, which relevantly contemplates the transfer of a proceeding from one court to another where "appropriate" or "in the interests of justice".
[17] As to the significance of the exclusive jurisdiction provision, His Honour adopted the approach taken by Philippides J in World Firefighters para 38, where Her Honour said:**
"The authorities favour the view that under the cross-vesting legislation, the exclusive jurisdiction clause remains a relevant consideration, on the basis that the 'interests of justice' require that due acknowledgement be accorded to such a clause as representing the bargain between the parties and that proper regard be given to the need to hold parties to their bargain. Nevertheless, in my opinion, in considering the weight to be given under the legislation to such a clause, one should not start from the position that such clauses should be viewed with the 'strong bias' in their favour previously accorded to them at common law. The weight to be given to such clauses will vary depending on the other surrounding and countervailing circumstances."
[18] The Judge then dealt with the features going to the comparative convenience of litigating in the competing jurisdictions:
"14. Dealing first with the range of factors identified by Philippides J in the World Firefighters case, I observe:
(a) There is, so far as I am aware, no difference between the substantive law of Queensland and that of South Australia relevant to this dispute;
(b) Neither party has identified any forensic advantages or disadvantages conferred by the competing procedural laws of Queensland and South Australia;
(c) It would appear that the plaintiff's choice of forum was founded on reasons of personal convenience in that this is the jurisdiction in which Mr Donald and his solicitors are present;
(d) The dispute would appear to have substantive connections with both Queensland and South Australia, arising from the relevant corporate residence of the litigating parties, the locus of the acts allegedly committed in breach of the Agreement, and the exclusive jurisdiction clause under the Agreement;
(e) It seems to me that there is a clear weighting of the relevant witnesses in Queensland in the sense that there are many more identified witnesses whose evidence is, or would appear to be, directly relevant to the issues which will be sought to be litigated, who are resident in Queensland than the number identified on behalf of the defendant who are in South Australia;
(f) Neither party advances a case that the court proceedings would be any more expensive, or inconvenient, in one jurisdiction rather than the other;
(g) No questions of convenience to either the Queensland or the South Australian court systems arise.
[19] Counsel for the appellant made these submissions:
1. that the most significant consideration was the exclusive jurisdiction provision;
2. that in any event, the number of Queensland witnesses should not have assumed the significance attributed to it by the Judge in the absence of some account of the evidence they would give; and
3. that the Judge erred in saying no disadvantage had been identified in relation to the competing procedural laws, because in South Australia 90 days' advance notice of a proceeding must be given, with a possible costs consequence in default.
**[20] As to the weight to be given to the exclusive jurisdiction provision, it is relevant, but subject to other considerations bearing on the comparative convenience of litigating in the competing jurisdictions. The approach taken by Philippides J conforms with the appellate approach in Schmidt v Won at 454 and Bankinvest AG v Seabrook at 726. In the cross-vesting context, there is no "bias" (in terms of the common law test) in favour of the contractually agreed jurisdiction where considerations of convenience and efficiency militate in favour of another jurisdiction.
[21] The appellant's complaint in relation to the identification of the Queensland witnesses and the relevance of their evidence is not substantial. Mr Donald has sworn that they could give relevant evidence on issues identified as justifying the termination in the appellant's solicitor's letter. That was enough. Interestingly, in response, the appellant's director did not himself summarize the evidence which could be given by the four potential South Australian witnesses he named. Mr Sheaffe pointed out that Mr Donald did not swear that those witnesses would be called. But that assurance could not at this stage be given, where pleadings have not even been delivered, held up by the filing of the conditional notice of intention to defend.
[22] As to the South Australian requirement for 90 days' advance notice of a proceeding, it is true that the primary Judge did not mention that in his reasons, but the consequences of failure to give such notice relate only to costs. Presumably the point is that where such notice is given, the parties may have reached a compromise without the need to incur the expense of litigation. The material before His Honour suggested there was little likelihood of any such compromise. In any case, a Judge could only speculate at this stage as to the likely impact of the exercise of such a discretion on costs, in relation to the ultimate financial outcome between the parties.
[23] This must therefore be seen to be a classic challenge to the factual conclusions of a primary court. It was perfectly open to the Judge, in determining where convenience and the interests of justice lay, to conclude that the likely involvement of many more Queensland rather than South Australian witnesses meant that the trial should occur in Queensland, notwithstanding the exclusive jurisdiction provision upon which the parties agreed.
[24] Furthermore, the subject matter of the ruling concerns practice and procedure, and appellate courts keep a "tight rein" on attempts to appeal against such rulings (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 580).**
**[25] I would order that the appeal be dismissed, and that the appellant pay the respondent's costs of and incidental to the appeal, to be assessed on the standard basis.
[26] MUIR JA: I agree that the appeal should be dismissed with costs for the reasons given by the Chief Justice.
[27] PHILIPPIDES J: I agree with the reasons of the Chief Justice and the orders proposed.**
River Gum Homes Pty Ltd
Meridian Pty Ltd [2010] QCA 293
(1981) 148 CLR 170
(1988) 14 NSWLR 711