Solicitors:
Office of the Chief Tax Counsel (Defendant)
File Number(s): 2024/00261660
[2]
ex tempore JUDGMENT
By a statement of claim filed on the 21 June 2024 the plaintiff Mr Lance Tegg, seeks orders pursuant to ss 8 and 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Cross-vesting Act) for (i) the removal of proceedings number 2023/00244063 brought by the defendant, the Deputy Commissioner of Taxation, against Mr Tegg in the District Court of New South Wales into the Common Law Division of this Court; and (ii) the transfer of those proceedings to the Supreme Court of Queensland. In support of his application, Mr Tegg relied on an affidavit sworn on 13 September 2024.
I was informed by Mr Farhan, who appeared for the defendant, that the defendant did not oppose the transfer of proceedings to Queensland.
By way of a statement of claim dated 31 July 2023, with an affidavit verifying affirmed on 1 August 2023, the Deputy Commissioner of Taxation commenced proceedings number 2023/00244063 against Mr Tegg in the District Court of New South Wales at Sydney seeking to recover an amount of $310,824.60 together with filing and service fees. It was alleged that this amount was due by way of tax-related liabilities arising out of the defendant's directorship of a specified company. Mr Tegg's defence included allegations that the matter had already been the subject of proceedings between the same parties in Queensland which had been resolved after a mediation ordered by the Queensland District Court in June 2020.
The Court has before it orders of the Queensland District Court made on 2 July 2020 in the proceedings between the Deputy Commissioner of Taxation and Mr Tegg. These orders stated:
"1. Leave is granted to discontinue the proceeding pursuant to rule 304(2) of the Uniform Civil Procedure Rules 1999.
2. No order as to costs in respect of the dismissal of the plaintiff's application for judgment on 11 June 2020 and in respect of discontinuance of the proceeding."
Mr Tegg swore an affidavit on 13 September 2024 which set out the relevant circumstances. Mr Tegg is 76 years old and an aged pensioner who has lived in Queensland for the past 13 years and would prefer not to travel to Sydney for legitimate cost and health reasons related to hypertension. He is self-represented and has limited funds. It also appears that the Commonwealth Bank of Australia has obtained a judgment against him for more than $4 million which has not been paid.
It is not clear why the Deputy Commissioner of Taxation commenced fresh proceedings against Mr Tegg in New South Wales but did not oppose the present application.
Section 8 of the Cross-vesting 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
…
(b) it appears to the Supreme Court that -
…
(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."
In Amaca Pty Ltd v Mortimer [2023] NSWSC 117 Davies J held, at [4], that the test for removing proceedings from another court in New South Wales into this Court is not a particularly demanding one. Since the Deputy Commissioner of Taxation does not oppose the transfer to a Queensland court and it is necessary for the proceedings to be pending in this Court for that to occur under the Cross-vesting Act, it is appropriate to make an order under s 8(1)(b) removing the New South Wales District Court proceedings into this Court so that proper consideration can be given to the application to transfer the proceedings to Queensland.
The transfer of proceedings from this Court to a Queensland court is governed by s 5(2) of the Cross-vesting Act, which relevantly provides as follows:
"5 Transfer of proceedings
(2) Where -
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and
(b) it appears to the first court that -
…
(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."
This provision only permits the proceedings to be transferred to the Supreme Court of another State or Territory not another court of a State or Territory. Thus, if the proceedings are transferred, it will be a matter for the Supreme Court to which the proceedings are transferred whether those proceedings should then be removed to another court of that State or Territory.
Under s 5(2), the question in the present case is whether it is in the "interests of justice" to order the transfer of the proceedings to the Supreme Court of Queensland. The relevant principles were considered in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 (Schultz). These principles were helpfully summarised by Lonergan J in Pilbara Ports Authority v Ashton [2019] NSWSC 1488 at [12] as follows:
"a. The power to exercise the power to transfer is not a discretionary power but a mandatory obligation when the interests of justice are determined. No question of discretion arises:[Schultz] at 434-5 [62]-[63] (per Gummow J); 481 [222] (per Callinan J).
b. The plaintiff's choice of forum, indicated by commencement of the proceedings, does not require any specific emphasis or weight to be given to it: Schultz at 425 [25] (per Gleeson CJ, McHugh and Heydon JJ); 439 [77] (per Gummow J); 466 [170] (per Kirby J); 492 [258] (per Callinan J).
c. The court hearing the application is required to decide which is the more appropriate court upon a fair balancing of all the factors defining the relevant interests of justice: Schultz at 424 [22] (per Gleeson CJ, McHugh and Heydon JJ).
d. The interests of justice are not the same as the interests of one party and there may be interests wider than those of either party to be considered: Schultz at 421 [15] (per Gleeson CJ, McHugh and Heydon JJ).
e. The more appropriate court will be the court that is the natural forum as determined by connecting factors to that forum: Schultz at 419-20 [10] (per Gleeson CJ, McHugh and Heydon JJ); Valceski v Valceski [2007] NSWSC 440 at 411 [69].
f. Relevant connecting factors include matters of convenience and expense such as the availability of witnesses, the places where the parties respectively live or carry on their business, especially if relevant to the issues, and the law regulating the relevant facts in issue: Schultz at 422-3 [18]-[19] (per Gleeson CJ, McHugh and Heydon JJ).
g. In many cases, there will be a preponderance of connecting factors with one forum so that the answer to the question of which is the more appropriate forum is clear: Schultz at 423 [19] (per Gleeson CJ, McHugh and Heydon JJ).
h. Significant weight will, as a general rule, be given to the place of the tort and, in personal injury matters, the place where the parties live: Ewin v BHP [2005] VSC 4 at [33]. Where these coincide, that will ordinarily resolve the question of the more appropriate forum, although other factors may still need to be given careful consideration to determine in which court it is in the interests of justice that the proceedings be heard: James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 361 [7].
i. It is also relevant if there is a coincidence of the law of the forum (lex fori) and the law of the place where the tort was committed (lex loci delicti) and this will avoid debate concerning substantive and procedural law: Schultz at 444 [99] (per Gummow J)."
Taking into account the principles set out above, all of the evidence before this Court and the absence of opposition from the Deputy Commissioner of Taxation, I am satisfied that it is in the interests of justice for the proceedings to be determined in Queensland and, at least initially, by the Supreme Court of that State.
Under s 12 of the Cross-vesting Act, where a proceeding is removed to under s 8 to the Supreme Court, that court may make an order as to costs that relate to the conduct of the proceeding before the removal, if those costs have not already been dealt with by another court. It appears to me that in so far as there are any such costs in the District Court proceedings, an order should be made that they are to be costs in the cause. As far as the costs in this Court are concerned, since there was no opposition to the removal and transfer, there should be no order as to costs to the intent that each party should pay its own costs of the proceedings in this Court.
Accordingly, the orders of the Court are:
1. Under s 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), proceedings number 2023/00244063 are removed from the District Court of New South Wales into the Common Law Division of the Supreme Court of New South Wales.
2. Under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), proceedings number 2023/00244063 are transferred to the Supreme Court of Queensland.
3. There is no order as to costs in respect of the proceedings in this Court to the intent that each party will bear his or her own costs.
4. Under s 12 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), the costs of the proceedings number 2023/00244063 in the District Court of New South Wales before removal into this Court are costs in the cause.
[3]
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Decision last updated: 02 October 2024