Southern Equity Pty Ltd v Timevale Pty Ltd

REASONS FOR JUDGMENT 1 This unfortunate proceeding was commenced on 30 March 2006. For some time, it has been the oldest proceeding in my docket and, on occasions, I have described it publicly as the most delinquent proceeding in my docket. It has proved extraordinarily difficult, over almost two and a half years, to produce a situation in which the parties would be ready to go to trial. In recent months, I have taken to making somewhat stringent timetabling orders, in an effort to persuade the parties to focus on the case, and to prepare it adequately for trial. Much time and effort has been wasted on both sides over that time, and there have been long periods of delay. The Court file is replete with notes of telephone conversations by my associates with the solicitors for the parties, seeking information as to why timetabling orders have not been complied with. The picture is, indeed, a very sorry one. 2 The matter was listed for the trial to begin this morning. This has caused a change of counsel on both sides in fairly recent times, and that, in turn, has caused a flurry of activity. On 19 August 2008, the respondent forwarded to the Court a further amended defence and cross-claim, apparently in the hope of seeking leave to file it. I had intended to deal with any leave issue this morning. The further amended defence and cross-claim raised for the first time, so far as the pleadings were concerned, a constitutional issue concerned with the nature of the judicial power of the Commonwealth. At a previous directions hearing, I had asked the question whether some of the relief sought by the applicant really amounted to seeking the advisory opinion of the Court on what might be the situation if certain events were to occur. The respondent finally sought to take that up in the amended defence and cross-claim. 3 Subsequently, on 28 and 29 August, ie Thursday and Friday of last week, and after prompting by my associate, the solicitors for the respondent began sending the requisite notices, pursuant to s 78B of the Judiciary Act 1903 (Cth), to the Attorneys-General for the Commonwealth, the states and the relevant territories. I am advised that responses have been received from all but the Attorney-General for Western Australia by this morning. There is a question, however, as to whether a reasonable time has elapsed, so as to permit the proceeding to go ahead this morning in any event. 4 At 9.29 am today, there arrived on the facsimile machine in my chambers minutes of order proposed by consent of the parties. Those orders involve the vacation of the trial date, leave to the applicant to file a further amended application and further amended statement of claim, an order pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) transferring the proceeding to the Supreme Court of New South Wales, and some consequential orders as to costs in relation to the costs thrown away by the amendments sought, and by the vacation of the hearing. 5 I was mystified by receiving these orders at such a late stage and in that form, but counsel for both parties have enlightened me substantially this morning. The effect of the further amendments proposed by the applicant is to eliminate, perhaps altogether, the federal elements of the claim, and to focus, largely, on points of construction in relation to the licence agreement that is the subject of the proceeding. The applicant's representatives have a concern that, if it turns out that the Court does not have jurisdiction because relief sought originally was not within the exercise of the judicial power of the Commonwealth, then it might turn out that the entire proceeding was a nullity, and that the other matters that had been raised in it were not capable of determination in this Court. 6 It is essentially for that reason that it seems to me that it might be in the interests of justice to accede to the request that I transfer the matter to a State Supreme Court. While the question whether the relief sought, some of which remains in the proposed further amended application, is truly relief that can be granted by a court would still have to be determined, it would not have to be determined in the context of the exercise of the judicial power of the Commonwealth. If there were doubt about the jurisdiction of this Court from the outset, then it would be better that the parties not be required to have that doubt resolved to the disadvantage of one or other of them. 7 I confess reluctance to order the transfer at the present time. The amounts of money spent in the preparation of this proceeding for trial have far exceeded what ought to have been spent, and the transfer of the matter to another court, effectively with a new start in relation to pleadings, is something that I am very reluctant to do. Having regard to the difficulties caused by the possible constitutional issue, and by the abandonment of what might be called the elements of federal jurisdiction in the proceeding, however, I am prepared to accede to what the parties desire me to do. 8 The transfer that is sought is to the Supreme Court of New South Wales. The facility to which the licence agreement relates is in Queensland, and the respondent is a Queensland corporation. On the other hand, the respondent is represented by lawyers from Sydney. The governing law of the licence agreement is stated to be the law of New South Wales. In pleadings to date, the respondent has relied on a New South Wales statute. Accordingly, the dispute is not entirely divorced from New South Wales. In the circumstances, I think I should accede to the parties' agreed desire that the transfer should be to the Supreme Court of New South Wales. 9 On looking closely at the terms of the orders sought, I have some difficulty with those relating to costs. Having heard counsel in relation to the orders for costs, I have decided that I am willing to make the order that the applicant pay the respondent's costs thrown away by the amendment, and by the vacation of the hearing. I am not, however, prepared to make the order proposed that those costs be taxed and payable forthwith. The practicalities of such an order seem to me to defeat it. Once the proceeding is transferred to the Supreme Court of New South Wales, the file must be sent immediately by the registry of this Court to the registry of that court. The absence of the file would, effectively, defeat any attempt by a registrar of this Court to tax costs pursuant to such an order. 10 The parties have discussed the matter between themselves, and resolved it by counsel for the applicant offering an undertaking to consent to an order in the Supreme Court of New South Wales that the costs the subject of that order be assessed and paid forthwith. 11 The orders I make, then, are as follows: The Court notes that the applicant by its counsel undertakes to consent to an order in the Supreme Court of New South Wales that the costs the subject of para 4 of the orders be assessed and payable forthwith. 1. That the date fixed for the trial of this proceeding, 3 September 2008, be vacated. 2. That the applicant have leave to file a further amended application and further amended statement of claim in the form tendered to the Court this day. 3. Pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), that the proceeding be transferred to the Supreme Court of New South Wales. 4. That the applicant pay the respondent's costs thrown away by: (a) the filing of the further amended application and further amended statement of claim; and (b) the vacation of the trial date.