ACT Civil and Administrative Tribunal|2010-03-25

This matter comes before ACAT at this time on a question of in what is the most appropriate forum for the matter to be heard.

The facts are that: * 2.1. The applicant principal's employee, Mr John Wilson ("Wilson", which name I will use throughout in describing the applicant, given that the interests of the company, the business name and Wilson are congruent) entered into an agreement with the first respondent to travel to Orange, in NSW to inspect a modified vehicle. * 2.2. The contract on Wilson's part, was commenced from his office in 20 Brassey Street Deakin, in the Australian Capital Territory ("ACT"). * 2.3. The other party was at all material times located in the state of New South Wales ("NSW"). * 2.4. There is no dispute between the parties that Wilson works from the ACT, although he has addresses in NSW, nor that he did enter into the negotiations in this case whilst in the ACT. * 2.5. The agreement, as asserted by Wilson was to draft a report on a modified Hot Rod Street Rod vehicle following inspection of the vehicle, and for payment of a sum for his travel from Canberra to do this. * 2.6. The matter was initially (7th September 2009) commenced against the first respondent, Mr Mick Fabar ("Fabar"). Fabar's response of 7th October 2009 indicated that he effectively was the wrong person against whom to claim, and suggested who the respondent might be. At the first conference (first return) leave was sought and given for the applicant to either join or substitute a respondent. * 2.7. On 5th November 2009, Wilson added a second respondent, Tim Hathaway ("Hathaway") to the proceedings. Hathaway at all material times also lived in NSW. * 2.8. On 27th November 2009, a response and counter claim was filed by Fabar. * 2.9. In 1st December 2009 a conference was listed to be held on 23rd December 2009, in respect of Wilson and Fabar and Hathaway, who although notified of the matter, had not submitted a response at that time. * 2.10. On 10th December 2009, Hathaway's solicitor, George Blackwell of Blackwell Short Lawyers in Orange notified ACAT that he was unable to attend the 23rd December 2009 conference, as the firm was closed, and sought a date after 18th January 2010. * 2.11. On 16th December 2009, the Deputy Registrar of ACAT sent notification of change of conference date to all parties, setting the matter for 20th January 2010, in conformity with the wishes of Hathaway's representative. * 2.12. On 20th January 2010 the conference was convened by President Stefaniak. Wilson was present in person, and the respondents were phoned. One of the respondents alleged not having received the ACAT notice, so the conference was adjourned to 28th January 2010, again with the respondents to be present by phone. * 2.13. The order was faxed to George Blackwell who was requested to have all parties present at his contact number at the return conference, as ACAT did not have facilities for multi-phone conferencing. * 2.14. The day prior to the adjourned conference, 27th January 2010, Mr Toby Tancred of Whiteley, Ironside & Shillington, solicitors of Orange indicated that they were now acting for Hathaway, and advised that they would participate in the conference the next day. Their letter was copied to Fabar. * 2.15. On 28th January 2010, Fabar faxed ACAT material regarding the matter. * 2.16. Following the conference (where proceedings are not recorded), in the absence of agreed settlement, orders were made to list the matter for hearing, with directions as to filing. * 2.17. A letter dated 28th January 2010, received at ACAT 2nd February 2010 then sought to have the orders of President Stefaniak vacated and the matter of jurisdiction - which had not previously been raised - to be determined. * 2.18. With that letter a response, also dated 28th January 2010, raising the issue of jurisdiction and denying the claim was field. * 2.19. I listed this as an interim application for 15th February and dealt with it on that day, reserving the decision.

At the interim hearing, the applicant represented himself, and Mr Tancred appeared for the second respondent. The first respondent did not appear, but Mr Tancred stated that in this particular matter - though not in the substantive issue - he was representing the interests of both respondents.

Mr Wilson for his part produced documentation to show that he most likely made the phone calls form Canberra, and that his office was indeed at Deakin. This material was not challenged by Mr Tancred.

Mr Tancred's submission was that whilst not disputing that the contract was initiated (the offer) by Wilson from Canberra, it was perfected when Hathaway accepted the terms and conditions in Orange.

It is common ground that the claim involved payment for work and travel undertaken in NSW.

The jurisdiction of ACAT is governed by section 22 of the ACT Civil and Administrative Tribunal Act 2008, which in turn refers to Part 4.2 of the Magistrates Court Act 1930.

Section 262 of the Magistrates Court Act 1930 gives ACAT (by extension) the power to decide matters where the defendant is not in the ACT, if a material part of the cause of action arose in the ACT.

Past practice in the (now replaced) Small Claims Court tended towards a very liberal view of this. In practice, the court tended to assume jurisdiction over cases that had any connection with the ACT.

However, I am not aware that this was ever questioned. Had it been, it is doubtful that that laxity would have continued.

It seems to me that on these facts, this case should properly have been commenced and conducted in New South Wales. The only real connection with the ACT is that Wilson was in the ACT when the offer was made. I accept Mr Tancred's argument, put in submissions that the contract was perfected in Orange. Certainly all Wilson's travel was in New South Wales, as was the ultimate purpose of the trip. The accommodation costs were incurred there.

The best argument that the applicant could mount is that the case has been commenced in the ACT, and that as a matter of convenience and cost it ought to be continued there. The question is one of forum non conveniens.

The principal Australian authority in this area is Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538.

In that case, the Court considered the questions of a "clearly inappropriate forum" and a "clearly more appropriate forum" test. Ultimately, the Court held that the "Spiliada Test" (Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460) was the preferred test for Australia as well.

The concept of a "natural forum" was stated by Lord Goff (the principal judge) that the "natural forum" was "that with which the action had the most real and substantial connection" and indentified relevant connecting factors pointing to other possible fora as including "not only factors affecting convenience or expense, (such as the availability of witnesses) but also other factors such as the law governing a relevant transaction ... and the places where the parties respectively reside or carry on business" ([1987]AC460 at 478).

The Court citing this in Voth, went on to state that:

"In the event that there is no other available forum which is clearly more appropriate for the trial of the action, the Court will ordinarily refuse a stay. If however there is some other available forum which is clearly more appropriate to the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted. ([1990] HCA 55; (1990) 171 CLR 538 at 548-9).

Compressing much legal debate, the upshot of this is that the "natural forum" is now understood to mean "That with which the action has the most real and substantial connection" (The Abidin Daver [1984]AC 398 at 415.).

Had the proceedings in this matter commenced in the ACT, and immediately been transferred, this problem in all probability would not have arisen. The fact that some of the proceedings have occurred in the ACT were suggested to me as a ground for continuing the matter in the ACT. Certainly this has appeal as a proposition.

However, the High Court in Voth specifically criticised that approach, by stating:

"It seems to us that Lee J in Anglo-Australian Foods Ltd v Von Planta ((1988) FCR 34) and French J in Green v Australian Industrial Investment Ltd ((1989) [1989] FCA 482; 90 ALR 500) placed too much weight upon the notion that a proceeding regularly invoked provides a prima facie right to have the proceeding continue in that forum... The court should not focus upon that factor to the exclusion of all others".

In all the circumstances, I find therefore that the second respondent succeed in his argument that the ACT is not the appropriate jurisdiction ("natural forum") for this matter, and that any further action in this matter should occur in New South Wales.

APPLICANT: SCENTINE PTY LTD (T/A AKZ VEHICLE ENGINEERING)

DATE/S OF HEARING: 15 February 2010 PLACE: CANBERRA

DATE/S OF DECISION: 25 March 2010 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

Civil and Administrative Tribunal Act 2008

SCENTINE PTY LTD (T/AS AKZ VEHICLE ENGINEERING) & FABAR AND HATHAWAY (Civil Disputes) [2010] ACAT 16 (25 March 2010)

Case Law: Voth v Manildra Flour Mills Pty Ltd (1990) [1990] HCA 55; 171 CLR 538

SCENTINE PTY LTD (T/A AKZ VEHICLE ENGINEERING) v FABAR & HATHAWAY

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SCENTINE PTY LTD (T/AS AKZ VEHICLE ENGINEERING) & FABAR AND HATHAWAY (Civil Disputes) [2010] ACAT 16 (25 March 2010)