Toyota Finance Limited v Alternate Lending Limited

EX TEMPORE JUDGMENT

1. HIS HONOUR: On a motion, notice of which was filed 30 September 2014, the defendant, Alternate Lending Ltd, applies to the Court pursuant to the terms of s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) for these proceedings to be transferred to the Supreme Court of Victoria. It has been made clear in the course of the submissions by the defendant that their ultimate desire is for the matter to be transferred to the Supreme Court of Victoria, whereupon the matter will be transferred to the County Court of Victoria to be heard in or around Mildura.
2. The parties have cooperated in the submissions to be put to the Court, for which I am grateful, and there is little or no difference between the parties as to the principles to be applied in determining the issues that the Court is required to address. The Court, on a transfer under the Jurisdiction of Courts (Cross-Vesting) Act, is not concerned with the old common law of determining whether this Court is a forum non conveniens and whether it cannot adequately deal with the matters before it. Plainly, the Court is capable of dealing with the matters that are before it in this case.
3. Rather, the issue is one that is determined by the interests of justice. The principles relevant to this matter have been the subject of adumbration by the High Court and I refer in particular to the judgment of the High Court in BHP Billiton Ltd v Schultz [2004] HCA 6; (2004) 221 CLR 400. "[13] In Bankinvest, Street CJ said: The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice … It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. [14] In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court 'shall transfer' the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate. [18] There is nothing unusual, either in the State or the federal judicature, about actions between residents of different Australian law areas. Federal diversity jurisdiction is an obvious example. Actions in New South Wales courts are commonly brought by residents of other States, especially when the residence or principal place of business of the defendant is New South Wales. Reference is sometimes made to one forum or another being the 'natural forum'. Such a description is usually based upon a consideration of 'connecting factors', described by Lord Goff in Spiliada as including matters of convenience and expense, such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction. Lord Templeman described such factors as "legion", and said that it was difficult to find clear guidance as to how they are to be weighed in a particular case. Thus, New South Wales might well be the "natural forum" for an action for damages brought by a passenger in a motor vehicle against the driver if they were both residents of New South Wales, even though the injury resulted from a collision that occurred on the other side of the Queensland or Victorian border. [19] In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications."