Supreme Court of the NT|1995-05-03|Before: Kearney J

Toren Fishing & Trading Pty Ltd v McKenzie Family Nominees Pty Ltd & Ors [1995] NTSC 57; 4 NTLR 195; 126 FLR 229 (3 May 1995)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA KEARNEY J CWDS Cross-vesting HRNG DARWIN, 3 May 1995 #DATE 3:5:1995 Counsel for plaintiff: Mr Roussos Counsel for defendant McKenzie: Mr Woodcock Counsel for defendant SBF: Mr Wyvill Counsel for third party M G Kailis: Ms Hodges ORDER Application granted. JUDGE1 KEARNEY J On 4 January 1995 the second defendant (herein "SBF") filed an interlocutory Summons seeking, inter alia, to have this action transferred to the Supreme Court of Western Australia for trial, pursuant to s5(2)(b)(ii) and (iii) of the Jurisdiction of Courts (Cross Vesting) Act (herein "the Act"). The first defendant (herein "McKenzie") did not oppose the application, the third party (herein "M.G.Kailis") supported it, and the plaintiff (herein "Toren") opposed it. 2. SBF filed and served the requisite notice of its application on all the parties to the proceeding, pursuant to r89.06 of the Supreme Court Rules. The background to the application 3. Toren instituted these proceedings by Writ on 21 October 1994. The factual allegations in its Statement of Claim are relevant to this application. They are, as far as material:- "- - - 4. Pursuant to an oral agreement made between (Toren) and (McKenzie) on or about 24 June 1994, (Toren) agreed to purchase from (McKenzie) a fishing vessel known as the Taluch Ard ("the vessel") for $155,000.00 ("the agreement"). - - - 6. It was a condition of the agreement that before the sale of the vessel was to be finalised, (McKenzie) would complete a two year hull survey and a one year gear survey on the vessel ("the surveys") and carry out any repairs ("the repairs") made necessary as a result of the surveys. 7. It was an express, or alternatively, an implied term of the agreement that (McKenzie) would exercise a reasonable standard of care and skill in completing the surveys and carrying out the repairs. 8. Further and in the alternative, (McKenzie) owed (Toren) a duty to use reasonable care in completing the surveys and the repairs. 9. (McKenzie) engaged (SBF) as subcontractor to complete the surveys and carry out the repairs. 10. (SBF) owed (Toren) and (McKenzie) a duty to use reasonable care in completing the surveys and carrying out the repairs. 11. In breach of the contract pleaded in paragraphs 6 and 7 hereof and in breach of the duties of care referred to in paragraphs 8 and 10 hereof, the Defendants acted negligently in the completion of the surveys and carrying out the repairs. PARTICULARS A. In completing the surveys it was found necessary to replace the anodes on the vessel. B. The anodes on the vessel were replaced with anodes not suited to that particular type of vessel, namely magnesium anodes when they should have been either aluminium or zinc anodes. C. In completing the surveys for the vessel the Defendants should have discovered that the incorrect anodes had been installed on the vessel. 12. As a result of the Defendants' negligence (Toren) has suffered loss and damage. PARTICULARS OF DAMAGE The agreement was concluded in about August 1994 and (Toren) took delivery of the vessel which arrived in Darwin on or about 14 August 1994. Between 26 and 31 August 1994 (Toren's) experts inspected the vessel and noted the

following: (a) A negative potential of 1.31 volts was recorded at regular intervals around the vessel; (b) On slipping the vessel it was clearly evident that there had been severe degradation of the weld seams and chines, consistent with excessive alkalinity produced by the high negative potential attacking the integrity of the aluminium at the stress points; (c) The paint coating was badly affected with extensive blistering due to hydrogen evolution on the cathodic areas of the hull;

(d) Tests carried out on the anodes fixed to the vessel proved them to be magnesium alloy and gave a potential reading of (-) 1.4v when immersed in sea water. Testing was conducted using a Wilson Walton Mark I cathometer with a silver/silver chloride reference electrode. Calibration was checked for accuracy against both bare steel and aluminium plates. As a result of the findings described above by (Toren's) experts the following rectification work was carried out on the vessel:- (i) Remove existing paint coating from the hull below the waterline, together with all corrosion products, by grit blasting. Particular attention paid to the weld seams; (ii) Re-instate all weld seams to the satisfaction of a marine surveyor; (iii) Replace existing anodes with suitable aluminium alloy anodes; (iv) Apply a suitable paint system and antifoul coating; (v) Vessel checked for electrical potential immediately after re-launching. 13. (Toren's) experts found that the damage caused to the integrity of the vessel and as described above was due to the incorrect use of magnesium anodes installed on the vessel as a result of the negligence of the Defendants. 14. (Toren) also claims damages by way of economic loss. PARTICULARS (Toren) took delivery of the vessel in August 1994 and was to commence fishing from it on or about 19 August 1994. (Toren) has been unable to fish from this vessel until late September 1994. (Toren) claims for loss of fishing income during this period.

A. At all material times (Toren) conducted a fishing business in the Northern Territory; B. The vessel purchased by (Toren) was to be used in that fishing business; C. Whilst the vessel was being repaired (Toren) has lost income from the vessel. AND (TOREN) CLAIMS: (i) Damages pursuant to paragraphs 12 and 13; (ii) Interest; (iii) Hungerfords v Walker interest; (iv) Damages for any capital gains tax liability; (v) Costs." 4. McKenzie and SBF were served with the Writ in Western Australia. McKenzie filed its Defence on 18 January 1995; in essence, it denied it was negligent, and that the plaintiff was entitled to any relief. 5. SBF filed its Defence on 6 December 1994; in essence, it denied it was negligent and asserted that "the plaintiff has not sustained the damage claimed or any damage." Par9 of this Defence provides as follows:- "9. (SBF) will further say at trial that:- 9.1 it placed an order by sample with (M.G. Kailis) for the supply to the second defendant of anodes of the vessel; 9.2 the sample was the anodes (SBF) had removed from the vessel; 9.3 M.G. Kailis supplied certain anodes to (SBF's) order; 9.4 (SBF) fitted the anodes to the vessel in the belief, honestly and reasonably held, that the anodes supplied to it by M.G. Kailis corresponded in all respects with the anodes it had removed from the vessel; and 9.5 by reason of the premises, it exercised all due care in its work upon the vessel." 6. On 12 December 1994 SBF issued a Third Party Notice to M.G. Kailis; it filed an Appearance on 3 February 1995, that is, 5 days prior to the hearing of this application. The source of power to transfer 7. The relevant provision of the Act is s5(2) which provides:- "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 - (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; (ii) having regard to - (A) whether, in the opinion of the first court, apart from

this Act and a 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; (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 that other State or Territory and not within the jurisdiction of the first court apart from this Act and a 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." (emphasis mine) 8. It may be noted immediately that s5(2)(b)(i) has no bearing on this application, since there are no related proceedings on foot, one in the Territory, and one in Western Australia; cf Midland Montagu Australia Ltd v O'Connor (1992) 2 NTLR 86 and Bankinvest AG v Seabrook (1988) 14 NSWLR 711, both of which were s5(2)(b)(i) cases. 9. Mr Wyvill's concession that the proceedings are governed by the "general law" means that there is nothing to have "regard to", as far as concerns s5(2)(b)(ii)(B), except that the third party proceedings between SBF and M.G.Kailis (see p7) appear to be governed by the Sale of Goods Act (W.A.). It seems proper to treat third party proceedings as part of the "relevant proceeding" referred to in s5(2)(a). The submissions of the applicant, SBF Does an applicant for transfer bear an onus? 10. Mr Wyvill of counsel for SBF submitted that a cross-vesting application was really a matter simply of court administration; the absence of a right of appeal confirmed this classification. As a corollary, the applicant bore no onus of persuasion. The question for the Court under both s5(2)(b)(ii) and (iii) was to decide which was the more appropriate (or 'natural') forum. 11. To establish that the applicant bore no onus, Mr Wyvill relied on Midland Montagu Australia Ltd v O'Connor (supra) at 94, where, following Bankinvest AG v Seabrook (supra) at 727, it was held that there was no onus on a party to satisfy the Court that an order for transfer should (or should not) be made. 12. Mr Wyvill also referred to Dawson v Baker (1994) 120 ACTR 11 at 18, where Higgins J considered that an applicant bears a 'forensic onus'; Gallop J agreed. The Full Court of the Family Court took the same view Kenda v Johnson (1993) FLC 92-331 at p79,505. In Paul v The Mid Coast Meat Company Pty Ltd (unreported, Supreme Court of Queensland (Demack J), 3 May 1994) at pp7-8 Demack J considered that the issue of onus might be "only one of semantics". His Honour also stated that whether or not the applicant bore an onus "the strength of the plaintiff's position (in having properly invoked the Court's jurisdiction) must weigh heavily in the scales (when considering whether the application to transfer should be granted)". 13. As to the apparently differing approaches to onus disclosed by these authorities Mr Wyvill submitted that: "Ultimately this debate about onus is - - - (one of) semantics

- - it is nothing more than a reflection of the general principle that the Court does not act (on a) whim. It - - - will not make a decision unless it is convinced that it is an appropriate decision."

He submitted that Dawson v Baker (supra) did not qualify the approach taken in Midland Montagu Australia Ltd v O'Connor (supra). He submitted that

"there are conflicting decisions (on the question of onus) of Courts of Appeal in different jurisdictions outside the Territory. (Consequently) it would be difficult - - - to conclude, - - - that your Honour was wrong in Midland Montagu and - - - we say your Honour ought to follow the line of authority that has already been established in this jurisdiction."

That is to say, the existence of apparently conflicting decisions meant that the Court could not be convinced that the approach to the question of onus in Midland Montagu Australia Ltd v O'Connor (supra) was wrong in law, and accordingly that approach should be followed; see La Macchia v Minister for Primary Industries and Energy and anor (1992) 110 ALR 201 at 204, on the application of the principle of judicial comity. Facts relevant to determining the application
Mr Wyvill submitted that the affidavit of Alan McCombie of 22 December 1994 established 7 factual matters which supported a transfer. (a) McKenzie, SBF and M.G. Kailis are all Western Australian companies, and have their management in that State; (b) The vessel was in Western Australia when purchased; (c) The contract for its sale and purchase came into existence and was performed in Western Australia. Toren did not seek to controvert this contention; consequently a Jones v Dunkel inference was open and this fact should be accepted. See Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 and Ghazal v GIO of New South Wales (1992) 29 NSWLR 336, to this effect; (d) Toren's complaints in relation to its contract to purchase the vessel from McKenzie, really arose from the performance of a subcontract between McKenzie and SBF, the repairer or surveyor; see par9 of Toren's Statement of Claim on p3. That subcontract, on the material before the Court, was clearly a subcontract entered into in Western Australia

between two parties (McKenzie and SBF) both Western Australian and carrying on business there. Both the contract between McKenzie and Toren for the sale and purchase of the vessel and the subcontract between McKenzie and SBF are governed by the law applicable in Western Australia; (e) The subcontract between McKenzie and SBF was performed in Western Australia. Consequently, any negligent performance thereof (a matter in issue by par9 of SBF's Defence, on p7) occurred in Western Australia; (f) The "parts purchase contract" between SBF and M.G. Kailis (see p7) came into existence and was performed in Western Australia, and would be governed by the Sale of Goods Act (W.A.); and (g) SBF would call 7 witnesses to give evidence at trial, all of whom reside in Western Australia. Mr Wyvill further submitted that although neither McKenzie nor M.G. Kailis had indicated the number of witnesses they would respectively call at trial, it should be inferred in light of the contents of pars (a)-(f) at pp11-12 that those witnesses would be Western Australia residents. 17. Mr Wyvill noted that Toren appeared to rely on the following 5 factual matters to oppose a transfer, viz:- (1) Toren is a Northern Territory company and its management is in the Territory; (2) the alleged defect in the works carried out on the vessel (see (a)-(d) on pp4-5) was detected in the Territory; (3) that alleged defect was repaired in the Territory; (4) the loss of profits alleged at p6 was suffered in respect of Toren's business in the Territory; and (5) all 12 of Toren's witnesses are Territory residents. 18. Mr Wyvill rightly conceded that these 5 matters had to be balanced against matters (a)-(g) at pp11-13, but cautioned - " - - - against giving each of these matters ((1)-(5)), individually, too great an emphasis. We say, essentially, that all of those factors flow from one factor - - - that the purchaser (Toren) was (engaged in) a Northern Territory business." The criteria relevant to the question of transfer 19. As to matters (a)-(g) at p11-13, Mr Wyvill submitted that the 'natural' forum for the trial of the questions arising from the contract of sale of 24 June 1994 is the place where that contract was performed. This was particularly so in this case, where McKenzie was contractually obliged not only to deliver the vessel but also, before doing so, to "undertake certain works" on it. 20. As to criteria applicable, Mr Wyvill relied on the useful list by Higgins J in Dawson v Baker (supra) at 25, of "some matters - - - of significance in determining whether it is in the interests of justice to order a transfer of proceedings." This non-exhaustive list comprises: (1) application of substantive law; (2) forensic advantage or detriment conferred by procedural law; (3) the choice made by the plaintiff (Toren) of a forum, and the reasons for that choice; (4) substantive connections with the forum; (5) balance of convenience to parties and witnesses; and (6) convenience to the Court system. 21. See also some suggested relevant criteria in Harrison v Trewhella (unreported, Supreme Court of Western Australia (Mr Commissioner Heenan QC), 8 September 1994) at pp19-21, and 6 "matters that one takes into account" in Lukic v Lukic (1994) 18 Fam L R 301 at 304-305. 22. In addressing seriatim each of the listed "matters of significance" (1)-(6) on p14, Mr Wyvill submitted:- (1) Although the "general law" would apply, as opposed to law specific to Western Australia, it was preferable to have the Court of a State administer the laws applicable within that State. (2) No forensic advantage or detriment stemming from procedural law applied in this case. (3) Applying the approach to onus in Midland Montagu Australia Ltd v O'Connor (supra), the mere fact that Toren had chosen the Territory as the forum should carry no weight. (4) Matters (a)-(g) at pp11-13 clearly establish that "substantive connections" in terms of residence, domicile and the place of occurrence favoured a transfer to Western Australia. Since the parties had made no express choice of law in their contractual arrangements, that matter is of no relevance here. (5) The balance of convenience was "the only issue - - - which might be finely balanced"; however, it favoured a transfer, even though all SBF's witnesses were its employees. That would in fact cause SBF "serious problems in conducting (its) business", if the trial were to be held in the Territory. (6) 'Court convenience' was not a relevant factor in this case. Mr Wyvill submitted that it would be inappropriate for him to compare this Court's case-flow management system with that of the Western Australia Supreme Court, to determine this issue. See Chapman and Jansen (1990) FLC 92-139, at p77,959. 23. In summary, Mr Wyvill submitted that the action had a "more real and substantial connection" with Western Australia than with the Territory. Consequently, that was the "natural" forum for trial; see Bankinvest AG v Seabrook (supra) at 728, per Rogers A-JA. In terms of s5(2)(b)(ii) of the Act the Supreme Court of Western Australia was the "more appropriate" forum for the resolution of the dispute, and the interests of justice otherwise pointed to a transfer, under s5(2)(b)(iii). Ancillary relief: costs 24. Mr Wyvill submitted that if SBF's application were granted, it should have its costs of the application. However, he conceded that in an interlocutory proceeding such as this the usual practice is to make no order as to costs, or to order that costs be costs in the cause: see TTE Pty Ltd v Ken Day Pty Ltd (1990) 2 NTLR 143 and Yow v Northern Territory Gymnastic Association Inc (1991) 1 NTLR 180. I observe that these authorities do not support the latter proposition. 25. Mr Wyvill submitted that if SBF's application were refused, it should not have to pay Toren's costs; SBF's application was not "unusual", in that the parties could reasonably have foreseen that such an application would be made. Consequently, he submitted, in those circumstances the appropriate order should be no less favourable to SBF than that the costs be costs in the cause. The supporting submissions by M.G.Kailis The application for transfer 26. In supporting the application for transfer Ms Hodges of counsel for M.G. Kailis relied on her own affidavit of 9 February 1995 made on information and belief, as follows:- "- - - 5. - - - on 15 July 1994 an employee of (SBF) attended at (M.G.Kailis') premises at Fremantle and purchased three anodes - - -. 6. - - - (M.G. Kailis) supplied to the employee of (SBF) three anodes. 7. - - - the anodes were taken away and fitted to the vessel by (SBF). 8. - - - the work was done whilst the vessel was slipped either at or near Fremantle in Western Australia. 9. - - - so far as (M.G.Kailis) is concerned, the alleged cause of action arose in Western Australia. 10. - - - it would be more convenient in all respects if the action were to be tried in Western Australia." Ancillary relief: costs 27. Mr Woodcock of counsel for McKenzie submitted that McKenzie was prepared to bear its own costs but could not be liable for any other party's costs, irrespective of the outcome of the application. 28. Ms Hodges submitted that if SBF's application were successful, M.G. Kailis would seek its costs. However, if Toren successfully resisted the application, M.G. Kailis should not have to pay Toren's costs. Toren's submissions opposing the application The question of onus 29. In his oral submissions, Mr Roussos of counsel for Toren appeared to concede that Midland Montagu Australia Ltd v O'Connor (supra) set out the law in the Territory with respect to this application. He submitted, in essence, that the 'natural' forum for trial had to be ascertained. The 'natural' forum was the venue for trial with which the action had the "most real and substantial connection"; see Spiliada Maritime Corporation v Consulex Ltd (1987) AC 460 at 478, per Lord Goff of Chieveley. As such, it was the forum in which the action should be tried, in the interests of all the parties and of justice. Ascertaining the 'natural' forum involved a '"nuts and bolts" management decision', as Street CJ put in Bankinvest AG v Seabrook (supra) at 714; it did not require that a party bear an onus of persuasion. It can be seen that the parties appeared to have a common approach to the question of onus. However in a written submission Mr Roussos also adopted the approach of Higgins J in Dawson v Baker (supra) at p18, viz:- "At the end of the day, the issue as to whether or not the proceedings are to be transferred must be determined on the basis that the court has been persuaded that the interests of justice require it. A PARTY SEEKING THAT RESULT THEREFORE HAS THE TASK OF PERSUADING THE COURT in which the action is pending THAT THE INTERESTS OF JUSTICE REQUIRE A TRANSFER. The question of "onus" or "no onus" seems not to be a real issue. There is and must necessarily be an "onus of persuasion" on any party seeking to persuade any court to a particular conclusion. If the court moves itself to transfer a proceeding, it is already persuaded. Of course, a party may wish then to persuade the court against so moving. If so, the onus of persuasion will be on a party opposing such a transfer in those circumstances. The real issue is as to the range and relative weight of matters which are relevant to whether a transfer of proceedings is or is not in "the interests of justice". (emphasis mine) 30. I consider that his Honour was concerned with practical matters arising from the practice of courts in dealing with issues raised before them. It is not suggested that an applicant bears a legal burden of establishing that there should be a transfer. I consider there is no legal burden either way as to that, but each party has an onus to persuade the Court as to what it contends the interests of justice require. In that process no weight should be attached to the plaintiff's choice of forum. Matters relevant to determining the application 31. Mr Roussos relied on the affidavit of Biaggio Spinella of 24 January 1995 to establish 8 relevant considerations which militated against the transfer of the proceedings, viz:- (a) Toren was incorporated in the Territory in 1976. (b) Mr Spinella took over Toren in 1985, and has been in business for at least 10 years in the Territory. (c) Arguably, the cause of action arose in the Territory in that the resulting damage, a matter essential to the existence of a cause of action, arose in the Northern Territory. (d) Toren would call at trial 5 expert and 7 lay witnesses; all of them live in the Territory but none of them are employed by Toren. The latter point shows, albeit by inference, that a transfer of proceedings would have, potentially, an adverse financial impact on Toren, which conducts a small business. (e) All of SBF's witnesses are its employees, save two experts. Consequently, it would be more convenient for SBF to "muster" its witnesses to the Territory, than for Toren to "muster" its witnesses to Western Australia. (f) The vessel was admittedly purchased in Western Australia and the offending anodes were fixed there. The issues, however, are of resulting loss and damage, and of liability for it. The damage was investigated in the Territory, and repairs were effected there. (g) The action has been on foot for more than 3 months. Defences have been filed by all parties, save the Third Party; this shows that the Defendants have been able to secure adequate legal representation in Darwin. (h) It is inappropriate at this time to transfer the action to Western Australia for trial. In the future, it may be that it is cheaper for the trial to be in Western Australia. Should that occur, Toren might then acquiesce in a transfer. Conversely, in the future, the issues between the parties may narrow, with the result that there is no need to transfer the action to Western Australia. 32. In essence, Mr Roussos submitted that to transfer at this time was premature. For example, it was not as yet known if liability, presently in issue, would in fact be an issue at trial. See Kenda v Johnson (supra) at p79,505; there the proceedings were transferred, though "still at an early stage". See also Chapman and Jansen (supra) at p77,967 per Olney J. 33. Relying on facts (a)-(h) at pp20-21, Mr Roussos sought to distinguish Bankinvest AG v Seabrook (1988) 14 NSWLR 711 on the facts; he submitted that there was there a "clear case" for the transfer of the proceedings, as Kirby P put it at p715. Here, in contrast, the action had a real and substantial connection to the Territory. Consequently, that was the 'natural' forum, and the application should be refused. This conclusion was strengthened by SBF's concession (p15) that the "general law" applied in this case, as opposed to specific Western Australia law. Ancillary relief: costs 34. Mr Roussos submitted that if Toren successfully resisted the application it should have its costs on the basis that the application was "unusual", in terms of r63.18. However, if the application was granted, the parties' costs should be 'costs in the cause' because Toren's opposition to the application was not "unmeritorious". SBF's submissions in reply 35. Mr Wyvill made 2 submissions in reply. "(the question of transfer) being a 'nuts-and-bolts' management decision, IT IS INAPPROPRIATE TO INVESTIGATE AT LENGTH THE LAW OF WHERE (A) TORT (ARISES); suffice it to say

- - that - - - the law (applicable) - - - is where the negligent act occurred - and that is the law of the place where the anodes were installed." (emphasis mine)

In support, Mr Wyvill relied on Sykes and Pryles 'Australian Private International Law' (3rd ed., 1991), Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, and the Service and Execution of Process Act (Cwth) 1992. See also Harrison v Trewhella (supra) at p18:- "- - - wherever an action may be heard as a result of any transfer made under the cross-vesting scheme, as far as possible it should be determined according to the law which has the closest connection with the cause of action - - -."
See also Paul v The Mid Coast Meat Company Pty Ltd (supra) at pp10-12.
As to the transfer application being premature, an application under the Act of necessity must be brought promptly; that is, it must be made "as soon as one is in a position to reach a conclusion about the appropriate forum." In support Mr Wyvill submitted that: (a) had SBF waited until later to apply for transfer the result could have been an increased waste of Court time, and a substantial increase in the costs of the litigation; and (b) any perceived injustice arising from a premature application is ameliorated in that although there is no right of appeal, a party may apply later to have the action re transferred, by establishing "some fundamental change in the nature of the case". Conclusions on the application
I consider that a broad approach should be taken to what is entailed in the "interests of justice" in both s5(2)(b)(ii)(C) and s5(2)(b)(iii); see generally Bankinvest AG v Seabrook (supra). The law applicable
In my opinion, the law in the Territory with respect to cross-vesting applications is now set out by Martin CJ in Swanson v Harley (unreported, 22 March 1995), a case dealt with under s5(2)(b)(iii). His Honour said at pp12-18:- "It is unfortunate that the interpretation of the scheme of cross-vesting of jurisdiction between the various superior courts in Australia, contained in the statutes of the Commonwealth, the States and Territories in indistinguishable terms, has been beset with differences of judicial opinion. The authorities cited in argument, and the review of the operation of a scheme, prepared by Garrie Moloney and Susan McMaster, published by the Australian Institute of Judicial Administration in 1992, show the apparently irreconcilable divisions. As the authors point out the scheme was intended to operate both nationally and uniformly so that the same basic approach should be adopted in all courts. The review is based upon material available at the end of June 1992 with some additions available thereafter. The assistance of counsel in this case, and my researches since, have not thrown up anything which demonstrates a closing of the gap between the opposing views. Since the two approaches cannot each be correct, it follows that injustices must arise from time to time from the application of the incorrect principles. The following is but a brief summary of the position as it has been reached in Australia, taken from a reading of many of the cases, but relying as well upon the review commencing at p81. The starting point, being the first decision under the scheme and the only one arising in a Court of Appeal, is Bankinvest AG v Seabrook and Others It involved an application to transfer New South Wales proceedings to Queensland where related proceedings had been commenced. The matter first came before Rogers CJ Comm.D. who considered it appropriate that it be referred to the Court of Appeal. It held unanimously that the New South Wales proceedings should be transferred. Rogers, A-JA, with whom Street CJ agreed, rejected an approach which involved a construction of the transfer provisions requiring that where a plaintiff properly

invokes the jurisdiction of a participating court, that court had a prima facie obligation to the plaintiff to exercise its

jurisdiction, and the further proposition that the party applying for a transfer order carried an onus of proof to establish some positive basis upon which the plaintiff's prima facie entitlement ought to be displaced. In doing so their Honours rejected the application of principles of private international law relating to the 'forum non conveniens' doctrine. Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 and Voth v Manildra Flour Mills Pty Ltd and Anor [1990] HCA 55; (1990) 171 CLR 538 had no application when consideration was being given to the transfer of proceedings between Australian courts under the cross-vesting legislation. It followed that no particular weight should be given to a plaintiff's choice of forum in which to commence

proceedings. Further, noting that under the scheme the court in which the proceedings were pending could of its own motion make a transfer order, questions of onus did not arise. Notwithstanding his rejection of the application of the principles of the 'forum non conveniens' doctrine, Rogers A JA found some assistance in understanding the criteria of the cross-vesting legislation from the decision in Spiliada Maritime Corp v Consulex Ltd (1987) AC 460 (rejected by the High Court in Oceanic Sun Line). In considering what was the appropriate forum, the court looks for the jurisdiction in which the action has the most real and substantial connection as may be found in looking for connecting factors, including those affecting convenience or expense, the law governing the relevant transaction and the places where the parties respectively reside or carry on business. The list of factors was not intended to be exclusive. (See the dictum of Lord Goff in Spiliada at p478). Although the Chief Justice agreed with the reasons of Rogers A-JA, the reverse did not occur, and the views of the Chief Justice tending towards regarding the decision as being an administrative one, stands alone. With respect, I would not be prepared to follow it. Kirby P., although agreeing substantially with the reasons of Rogers A-JA for making the order for the transfer, reserved his decision on several of the points accepted by the other members of the court. Naturally enough, the Judges of the Supreme Court of New South Wales have followed Bankinvest; see for example, Amor v Macpak Pty Ltd (1989) 95 FLR 10. The Victorian Supreme Court has consistently applied the principles in Bankinvest, for example, Linter Group Limited (In Liquidation) v Price Waterhouse (1992) 9 ASCR 346 and the unreported decision referred to therein. The authors of the review found two unreported cases in Queensland which adopted the Bankinvest approach. The position in South Australia appears to be unclear. As to Tasmania, the review refers to Anagnostis and Styl v Davies Brothers Limited ((1989) 99 FLR 196) as adopting Bankinvest, and in 1993 Australian Current Law Reporter at (125 TAS 2) and (125 TAS 3) there are references to other unreported decisions of single Judges of that court in which Bankinvest has been applied and followed. In the Australian Capital Territory and Western Australia there has been adopted what has been termed the "narrow" approach demonstrated in cases such as Waterhouse v The Australian Broadcasting Corporation (1989) 86 ACTR 1; Baffsky v John Fairfax and Sons Limited (1990) 97 ACTR 1; and Mullins Investments Pty Ltd and Another v Elliott Exploration Co Pty Ltd (1989) 1 WAR 531." 41. I interpose to note that the recent decision of Harrison v Trewhella (supra), a case involving s5(2)(b)(i), distinguished the latter case which involved s5(2)(b)(iii), and adopted a 'broad' approach to the "interests of justice". The Chief Justice continued:- "Each of the single Judges deciding those cases placed some reliance upon what was said by the High Court in Oceanic Sun

Line in construing the cross-vesting legislation. The major point of departure from the decision in the other jurisdictions is that their Honours viewed the interests of justice as requiring the right of a plaintiff to insist upon the exercise of a competent jurisdiction which was regularly invoked to be taken into account, and, as was said in Mullins Investments, "not to be lightly displaced". Further, the applicant carried an onus in satisfying the court that the plaintiff's right should be displaced. At the time of the review there were no reported decisions of this Court on the subject, but that position was remedied when Kearney J delivered his judgment in Midland Montagu Australia Limited v O'Connor (1992) 2 NTLR 86 on 31 July 1992. At p94 his Honour said that Bankinvest was authority for the following propositions which emerged from the judgment of Rogers A-JA, with whom Street CJ agreed: "On such an application the criteria for deciding whether an order should be made are those prescribed by the Act, having regard to the legislative purpose of the cross-vesting scheme. The questions to be answered are: which court is the most appropriate forum to determine the proceedings; which court is pointed to as the appropriate forum, by the interests of justice. The guiding principle is: what do the interests of justice dictate should be done. There is no presumption that the court the jurisdiction of which has been properly invoked, the "first court", should exercise that jurisdiction. The question of transfer cannot be decided by looking simply to the jurisdiction of the respective courts; that is, to whether one court could give relief or make a determination more completely than the other. There is no onus on a party to satisfy the court that an order for transfer should or should not be made". His Honour went on to refer to the observation by Street CJ in Bankinvest that THE DECISION TO MAKE A TRANSFER ORDER IS A "NUTS AND BOLTS MANAGEMENT DECISION". With respect, I have some difficulty in understanding what that means, but APART FROM THAT, (IF KEARNEY J WAS ADOPTING IT) I AM OF THE SAME VIEW AS HIS HONOUR THAT THE OTHER PROPOSITIONS LAID DOWN IN BANKINVEST, AS SET OUT ABOVE, SHOULD BE ACCEPTED IN THIS JURISDICTION. Since I have come to this view independently, it is not necessary for me to say anything about whether a Judge of this Court should or must follow the decision of another Judge of this Court as a matter of judicial comity,

unless convinced the other Judge was wrong (see the remarks of Burchett J in La Macchia and Others v Minister for Primary Industries and Energy and Another (1992) 110 ALR 201 at 204). The very nature of the statutory scheme, adopted in all jurisdictions, goes a long way to demonstrating that in

applications for transfer under it the sundry jurisdictions should no longer be treated as if they were foreign countries, and that view can be safely adopted without resort to broad political considerations. That a plaintiff has chosen a particular jurisdiction within which to commence the proceedings does not carry any more weight than the valid reasons which led to that choice, when determining the 'interests of justice' on a transfer application. The fact that the Court may transfer the proceedings of its own motion is indicative that it was not intended that parties should bear an onus. ALL OF THE RELEVANT CIRCUMSTANCES PLACED BEFORE THE COURT ON SUCH AN APPLICATION WILL BE TAKEN INTO ACCOUNT IN DETERMINING WHERE THE 'INTERESTS OF JUSTICE' LIE IN THE CIRCUMSTANCES OF THE PARTICULAR CASE. (emphasis mine) 42. I also respectfully agree with the 'broad' approach of the Full Court of the Family Court in Kenda v Johnson (supra); and with the view of Fogarty J that the time to make the assessment required by s5(2)(b)(ii)(A) is the time the application for transfer is made. 43. I agree with the Chief Justice's conclusions in Swanson v Harley (supra) both because I believe, with respect, his analysis and approach is correct and because it is desirable that there be a consistent approach in the Territory to cross-vesting applications, to avoid the creation of a judicial wilderness of conflicting and unappealable decisions. 44. I should add that I consider the characterization by Street CJ in Bankinvest AG v Seabrook (supra) at 714, of the decision on an application to transfer as a "nuts and bolts management decision", is apt. It connotes that when a defendant applies for transfer under s5(2) of the Act the Court does not consider as relevant to that issue any obligation it has to the plaintiff to exercise its own jurisdiction, which the plaintiff has properly invoked by its Writ; and that the applicant for transfer bears no legal onus to establish a positive basis for transfer. I consider that as a matter of reality an applicant (and a respondent) bear a forensic onus in the sense mentioned at pp19-20, as opposed to a legal onus. In Harrison v Trewhella (supra) at p18, Mr Commissioner Hennan QC extracted the essence of the meaning of a '"nuts and bolts" management decision' when he said:- "Viewed as a whole, the legislative policy (of the Act) appears to be designed to give A LARGE DEGREE OF FLEXIBILITY FOR THE PRACTICAL ADMINISTRATION OF PENDING LEGAL PROCEEDINGS and it does so in (a) setting where, as far as possible, the ultimate result of the litigation WILL NOT BE AFFECTED BY SUCH DIFFERENCES AS DO EXIST BETWEEN THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE DIFFERENT STATES AND TERRITORIES". (emphasis mine) 45. It appears to me that the structure of s5(2) of the Act requires that the application of s5(2)(b)(ii) be considered before s5(2)(b)(iii); this flows from the use of "otherwise" in the latter provision (p8). 46. As to s5(2)(b)(ii)(A), it is not suggested that this action "would have been incapable of being instituted" in the Territory apart from the cross-vesting legislation. Actions such as this are actions in personam; the foundation of jurisdiction to entertain such actions is service of the writ. Here the defendants are resident outside the Territory, and were served with the writ in Western Australia in accordance with the Service and Execution of Process Act 1992 (C'th). In light of this Act it seems unlikely that the issue raised by s5(2)(b)(ii)(A) would ever yield a positive answer; the result of this Act is that if a defendant is sued in an inappropriate forum his remedy lies in the cross-vesting legislation. I note that on the facts the Territory forum would have been open under the common law rules stated in McKain v R.W.Miller and Co. (South Australia) Pty. Ltd. [1991] HCA 56; (1991) 104 ALR 257. 47. I have dealt with s5(2)(b)(ii)(B) at p9. 48. The question under s5(2)(b)(ii) in this case really comes to this: is it more appropriate that the action be transferred, having regard to the interests of justice? The question under s5(2)(b)(iii) appears to be: apart from whether it is more appropriate that the action be transferred (having regard to interests of justice), is it otherwise in the interests of justice that it be transferred? The application of the criteria 49. Some of the criteria relevant to answering those questions are set out or noted at pp14-15. 50. Having regard to the affidavit material relied on by the parties and their respective submissions, I am able to state reasons for the decision on the application, briefly. 51. Notwithstanding Mr Wyvill's concessions that the "general law" would apply in this case and that the balance of convenience would be "finely balanced", applying the relevant criteria at pp14-15 I consider that the application should be granted, for the following reasons. 52. I accept Mr Wyvill's submissions in relation to factors (a)-(g) at pp11-13, subject to one qualification. In relation to factor (g), as no evidence has been produced as to the number of witnesses M.G.Kailis and McKenzie will call at trial, an inference that their witnesses are based in Western Australia, is inutile for the purposes of this application. 53. I do not accept Mr Wyvill's submission at pp13-14 that the reason he advances warrants each of the factors (1)-(5) at p13 being given a somewhat lesser emphasis. 54. As to Mr Roussos' submissions, I have had regard to factors (a)-(h) at pp20-21. As to factor (d) on p20, as there was no evidence to enable an assessment of the potential adverse financial impact on Toren of a transfer, I am unable to give that factor the weight Mr Roussos submitted it should be given. 55. Factor (e) at pp20-21 is a factor which must be given some weight, bearing in mind Mr Wyvill's submission (5) at pp15-16. 56. As to factor (h) at p21, I bear in mind Mr Wyvill's submission (2) at pp23, the purpose of the cross-vesting legislation, and the observations in Kenda v Johnson (supra) at p79,505. The application for transfer must be assessed as at the time of hearing the application, not at some hypothetical time in the future when all sorts of matters presently imponderable may be clearer. Speculation on such matters is irrelevant to the assessment at the time of the hearing. The longer an applicant waits before bringing the application the more chance there will be of wasting Court time, and increasing costs. I do not accept Mr Roussos' submission that the application is premature though I acknowledge that at this stage the issues for trial (and the corresponding ambit of the evidence) may be better identified later. 57. In the particular circumstances of this case, consideration of the relevant factors in the light of the material facts favours the grant of the application for transfer. That is to say, pursuant to s5(2)(b)(ii), on balance the Supreme Court of Western Australia is the more appropriate (or 'natural') forum, that with which this action has the more real and substantial connection, and in which it is better that it be tried in the interests overall of the parties, and of justice. If it were necessary to consider the application of s5(2)(b)(iii), the same result would flow. Ancillary relief: costs 58. Bearing in mind the respective submissions at pp16-17, 18 and 22 I consider that there are no exceptional circumstances and that the appropriate order is that each party should bear its own costs of the application, pursuant to r63.18. See also Guernier v Patterson (1992) 110 FLR 178. Orders 59. The application by SBF of 4 January 1995 is granted. Each party will bear its own costs of that application.

Execution of Process Act 1992

(1994) 18 Fam L R 301

Toren Fishing & Trading Pty Ltd v McKenzie Family Nominees Pty Ltd & Ors [1995] NTSC 57; 4 NTLR 195; 126 FLR 229

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Toren Fishing & Trading Pty Ltd v McKenzie Family Nominees Pty Ltd & Ors [1995] NTSC 57; 4 NTLR 195; 126 FLR 229 (3 May 1995)

Parties

Legislation Cited (2)

Cases Cited (16)