District Court New South Wales Medium Neutral Citation: Toyota Material Handling Australia Pty Ltd v Cardboard Collection Service Pty Ltd [2020] NSWDC 667 Hearing dates: 9 October 2020 Date of orders: 29 October 2020 Decision date: 29 October 2020 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) The Notice of Motion filed on 10 September 2020 is dismissed. (2) The defendant is to pay the plaintiff's costs of the Notice of Motion filed on 10 September 2020 as agreed or assessed. Catchwords: CIVIL PROCEDURE – stay – whether the Victorian County Court is "the appropriate court" to determine the proceedings – principles applicable – exercise of discretion – relevance of possible AVL hearings of witnesses' evidence – COVID-19 pandemic restrictions Legislation Cited: Australian Consumer Law (Cth) Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Service and Execution of Process Act 1992 (Cth) Cases Cited: Aqua Max Water Filtration Solutions Pty Ltd v Hurtado [2017] SASC 165 Community First Inc v Job Futures Ltd [2008] FCA 1265 Monash IVF Pty Ltd v Dr Lynne Burmeister (No 2) [2017] NSWSC 903 Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd [2006] FCA 247 Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 St George Bank Ltd v McTaggart (2003) 2 Qd R 568; [2003] QCA 59 Taurus Funds Management v Aurox Resources Ltd [2010] NSWSC 1223 Category: Procedural and other rulings Parties: Toyota Material Handling Australia Pty Ltd (Plaintiff) Cardboard Collection Service Pty Ltd (Defendant) Representation: Counsel: R Notley (Plaintiff) J Castelan (Virtual Court) (Defendant) Solicitors: Andrews & Holm Lawyers (Plaintiff) Madgwicks Lawyers (Defendant) File Number(s): 2020/00207137 Judgment 1. Before the court for determination is a Notice of Motion filed on 10 September 2020 by the defendant, Cardboard Collection Service Pty Ltd, seeking an order pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth) ("the Act"), that the proceedings be stayed on the ground that the County Court of Victoria is the appropriate court to determine the issues in the proceedings. Consequential relief is also sought. 2. Initially, an order for a stay was also sought at common law but was not pressed in final submissions by the defendant. 3. The plaintiff, Toyota Material Handling Australia Pty Ltd, opposes the orders sought. Background to the proceedings 1. The court was provided with helpful written submissions by counsel for the parties which referred to the background to the proceedings. 2. The proceedings were commenced by Statement of Claim filed on 14 July 2020. In the Statement of Claim, the plaintiff pleads, in summary, as follows: 1. It entered into three rental agreements with the defendant at various times in 2017, pursuant to which the defendant agreed to rent from the plaintiff Toyota forklifts; 2. There were express terms in each of the rental agreements relating to the payment of monthly amounts by the defendant to the plaintiff during the rental periods; 3. There were express terms in each of the rental agreements relating to the defendant agreeing to safe-keep the forklifts, to use them with the utmost care and to carry out daily safety and maintenance checks concerning them; 4. The plaintiff pleads that the forklift equipment rented by it to the defendant was damaged while it was in the possession of the defendant and that this was due to or resulted from various matters including the failure of the defendant to ensure the safekeeping of the equipment, not using the equipment with the utmost care, not using the equipment in accordance with the manufacturer's instructions and not carrying out daily safety and maintenance checks of the equipment; 5. It is pleaded that, as a result, the defendant breached the terms of the rental agreements, the plaintiff gave notice of its intention to terminate each of the rental agreements and those agreements were in due course terminated; 6. It is pleaded that on 21 February 2020, the plaintiff re-took possession of the forklift equipment rented by it to the defendant; 7. Damages are sought and an early termination fee is also sought under each of the rental agreements. 1. By a Defence filed on 19 August 2020, the defendant admits the rental agreements, denies the damage alleged, pleads that the rental agreements were wrongly terminated, asserts misleading or deceptive conduct relating to the supply of replacement equipment if the forklifts broke down or required maintenance or replacement and claims that the early termination fee clauses in the rental agreements are void as they are unfair contract terms pursuant to s 23 of the Australian Consumer Law. In essence, the defendant denies the claims in the Statement of Claim. 2. It is noted that the Defence was filed on 19 August 2020 but the Notice of Motion was not filed until 10 September 2020. However, early notice was given by the defendant of its intention to assert that the Victorian County Court was the "appropriate court" for the hearing of the claims in the proceedings. Affidavit evidence 1. The defendant read on the application the following affidavits: 1. Affidavit of Sarwar Nasimi affirmed 10 September 2020; and 2. Affidavit of Chloe Ashley Taylor affirmed 8 October 2020. 1. The plaintiff read on the application the affidavit of Benjamin Perla affirmed 29 September 2020. 2. In relation to the affidavit of Ms Taylor, the defendant did not press on the application the argument that the plaintiff was a related body corporate to Toyota Motor Corporation Australia Ltd within ss 9 and 50 of the Corporations Act 2001 (Cth). This was relevant to the issue whether related bodies corporate to the plaintiff had retained solicitors to act for them in Victorian courts in other matters. 3. The affidavit evidence read on the application establishes the following matters: 1. The defendant is a company that is registered in Victoria and operates its business from premises in Dandenong in Victoria; 2. The plaintiff is a company that has its registered and main office in New South Wales. The plaintiff's senior and executive management team and its internal legal department are all in New South Wales. The plaintiff has a branch office in Dandenong South in Victoria; 3. The plaintiff's solicitors are its primary legal service provider and are only located in New South Wales; 4. The defendant's solicitors are located in Victoria; 5. The defendant entered into the three rental agreements with the plaintiff for the supply of the three Toyota forklifts. All negotiations took place at the defendant's premises in Dandenong in Victoria and the addresses of both parties under the rental agreements are Victorian addresses; 6. The use of the forklifts was at the defendant's premises in Dandenong in Victoria. When they required maintenance, they taken off site by the plaintiff; 7. The forklifts in question are no longer in the possession of the defendant having been taken by the plaintiff. The evidence establishes that the plaintiff sold the forklifts to a third party but the affidavit of Mr Perla does not identify who that third-party is, where they are located, what was the price paid for the forklifts and whether the forklifts remain in the State of Victoria or have been moved to another state; 8. The plaintiff has detailed reports, prepared by an employee of the plaintiff, with respect to the condition that the forklifts were in at the time that the plaintiff re-took possession of the forklifts on or about 21 February 2020. Those reports include numerous photographs of the forklifts at the time possession was taken by the plaintiff. The employee in question is located in Victoria. I infer that the condition of the forklifts at the time the plaintiff re-took possession will be a significant issue in the proceedings. Witnesses from the defendant will be able to give evidence as to this as will the relevant employee of the plaintiff located in Victoria. It is likely that the reports prepared by the employee with the photographs will become central in the proceedings; 9. There is a real prospect that any expert evidence will be based on the photographs and any objective evidence from the inspection rather than any current inspection or examination of the forklifts following their sale; 10. Paragraph 15 of Mr Nasimi's affidavit states that Mr Nasimi confirms that all witnesses relating to the formation of the rental agreements, the use of the forklifts, maintenance of the forklifts and the circumstances surrounding the plaintiff taking possession of the forklifts are located in the State of Victoria. This was admitted as evidence of belief only. Details of the likely witnesses are not provided. Paragraph 17 of Mr Perla's affidavit provides that the plaintiff expects to adduce lay evidence from a Mr Watkins, a director of the plaintiff, who is located in New South Wales and from the relevant employee, Mr Dalton, who is located in Victoria. In paragraph 18 of his affidavit, Mr Perla notes that if the plaintiff produces expert evidence it will be from expert witnesses located in New South Wales; 11. Presently, there exist lockdown restrictions on the parties in Victoria, including travel restrictions, due to the COVID-19 pandemic. I note that it is unclear what the restrictions will be as to travel between the states of Victoria and New South Wales at the time of the final hearing and whether any hearing will have to be conducted by a virtual court. 1. It is not in dispute that the County Court of Victoria has jurisdiction to hear and determine the dispute pleaded between the parties. 2. I note that on the pleadings, the law that is relevant to the dispute is contract law at common law and the provisions of the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth). Therefore, there are no specific acts of either the State of New South Wales or the State of Victoria which are of particular relevance in the determination of the proceedings. 3. I also note that as the plaintiff's lawyers are only located in New South Wales, it would be likely necessary for the plaintiff to retain solicitors and possibly counsel in Victoria if fresh proceedings were commenced by it in the County Court of Victoria. The applicable legislation 1. The application by the defendant is made under s 20 of the Act. This section provides as follows: "20. Stay of proceedings (1) This section does not apply in relation to a proceeding in which the Supreme Court of a State is the court of issue. (2) The person served may apply to the court of issue for an order staying the proceeding. (3) The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters. (4) The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include: (a) the places of residence of the parties and of the witnesses likely to be called in the proceeding; and (b) the place where the subject matter of the proceeding is situated; and (c) the financial circumstances of the parties, so far as the court is aware of them; and (d) any agreement between the parties about the court or place in which the proceeding should be instituted; and (e) the law that would be most appropriate to apply in the proceeding; and (f) whether a related or similar proceeding has been commenced against the person served or another person; but do not include the fact that the proceeding was commenced in the place of issue. (5) The court's order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense. (6) The court may determine the application for an order without a hearing unless the applicant or a party objects. (7) For the purposes of determining the application, the court may hold a hearing by audio link or audiovisual link. (8) A person who is entitled to practise as a barrister, solicitor or both before a court in: (a) the place of issue; or (b) another State in which a person is participating in the hearing by audio link or audiovisual link; has a right of audience before the court at the hearing. (9) This section does not affect the court's power to stay a proceeding on a ground other than the ground mentioned in subsection (3). (10) This section does not affect the operation of: (a) the Jurisdiction of Courts (Cross‑vesting) Act 1987; or (b) a corresponding law of a State." Principles applicable 1. The general principles applicable to an application pursuant to s 20 of the Act were not in dispute between the parties and are, in summary, as follows: 1. The onus is on the applicant to establish that another state court with jurisdiction to determine all matters in the proceedings is "the appropriate court" to determine those matters; 2. Identifying the matters in issue is a pre-requisite to deciding on "the appropriate court"; 3. The expression "appropriate court" in s 20(3) of the Act is the court with which the action has the most real and substantial connection and which therefore can be regarded as the natural forum to hear the matter; 4. Section 20(4) of the Act contains a non-exhaustive list of matters to be taken into account by the court; 5. The applicant for a stay must demonstrate a "clear and compelling" basis for the relief sought; and 6. A determination under s 20(3) of the Act involves the exercise of a discretionary judgment by the court. 1. See St George Bank Ltd v McTaggart (2003) 2 Qd R 568; [2003] QCA 59 at [9]-[11] and [17]; Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 at 58; Aqua Max Water Filtration Solutions Pty Ltd v Hurtado [2017] SASC 165 at [29]-[31]. 2. Justice Blue stated as follows at [29]-[31] in the latter case: "29. The purpose of the concluding words of subsection 20(4) is to negate the common law approach to forum non conveniens which required a defendant to demonstrate that the chosen forum was clearly inappropriate and ensure that a plaintiff does not obtain a "home ground" advantage merely because the plaintiff chose the court of issue. 30. The overriding test is set out in subsection 20(3), namely whether a court of another State is the appropriate court to determine all the matters in issue between the parties. While subsection 20(4) identifies six relevant matters to be taken into account in determining that question, those matters are manifestly non-exhaustive. 31. The test whether a court of another State is the appropriate court to determine all the matters in issue involves a consideration of with which court the action has the most real and substantial connection." 1. Section 20(4) of the Act makes clear that a court does not take into account the fact that the proceedings were commenced in the place of issue. 2. Clause 15 in each of the three rental agreements which are relevant to the proceedings provides as follows: "15 General … (f) The laws applicable in New South Wales govern this agreement. (g) The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts." 1. It was accepted by the parties, as indicated above, that on the pleadings the laws which would be applicable would be the common law of contract and the Australian Consumer Law. It is not suggested that any special act of the State of New South Wales or the State of Victoria would be relevant. Accordingly, the fact that the law of New South Wales applies to the rental agreements would not appear to be significant. 2. There was a difference of approach between the parties in relation to the significance of the clause in each rental agreement constituting a non-exclusive jurisdiction clause for the courts of New South Wales. 3. The defendant relied on comments by Federal Court judges in Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd [2006] FCA 247 and Community First Inc v Job Futures Ltd [2008] FCA 1265. 4. In the Plantagenet Wines case, above, Siopis J stated as follows at [59]: "59. A non exclusive jurisdiction clause does not preclude a party bound by that clause from commencing proceedings in a jurisdiction other than the jurisdiction specified in the clause. The effect of the clause is that the contracting parties agree to submit to the non exclusive jurisdiction of the court specified in the clause, the claims that are within the scope of the clause. I accept the argument of counsel for Plantagenet that there is a relationship between the scope of the choice of law clause and the scope of the submission to the non exclusive jurisdiction in cl 24.7 of the distribution agreement. I also accept Plantagenet's argument that the words 'The Agreement and the transactions contemplated by this [agreement]' in that clause, refer to claims relating to the construction and performance of the distribution agreement and do not refer to claims of misrepresentation inducing the entry into the distribution agreement (see Green v Australian Industrial Investment Ltd [1989] FCA 482; (1989) 25 FCR 532 at 543 ('Green'))." 1. In the Community First case, above, McKerracher J stated as follows in [9]-[10]: "9. It is to be noted that cl 35 is not an exclusive jurisdiction clause but I accept that it does disclose an intention on the part of the contracting parties to the litigation to prefer any dispute arising under the contract to be conducted in courts within the specified State: Australian Co-operative Foods Ltd & Anor v National Foods Milk Ltd [1998] FCA 376 and Aquila Resources Limited v Pasminco Limited [2004] FCA 39 at [36]-[41]. 10. However, I also accept the applicant's submission that such a clause in a change of venue application does not carry weight where federal legislation is involved: Plantagenet Wines Pty Ltd v Lion Nathan Wine Group Australia Ltd [2006] FCA 247 at [61] per Siopis J. It is true also that little weight is attached to such a clause where State legislation is involved providing that such legislation is reasonably uniform in nature: Westpac Banking Corporation v O'Brien [1997] ACTSC 107; Rothwells Ltd (in liq) v Connell [1995] QSC 30. …" 1. Counsel for the plaintiff relied on a number of New South Wales authorities considering applications under s 5(2)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). Although that section uses the phrase "more appropriate" rather than "appropriate", any consideration of a stay under s 20 of the Act requires in my view some degree of comparative analysis. 2. In Monash IVF Pty Ltd v Dr Lynne Burmeister (No 2) [2017] NSWSC 903, Ball J stated as follows in paragraphs 14-19, 24 and 27: "14. The "more appropriate" forum will ordinarily be the jurisdiction "with which the action has the most real and substantial connection", having regard to objective factors: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [170] per Kirby J (with whom Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ agreed). Those factors include: (a) the location where the parties reside and carry on business: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [19]; British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [69]; (b) the location where the cause of action arose: British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [69]; (c) the law governing the relevant transaction and any choice of jurisdiction by the parties: Asciano Services Pty Ltd t/as Pacific National v Australian Rail Track Corp Pty Ltd [2008] NSWSC 652 at [18]- [19]; Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223 at [38]- [39]; (d) the likely hearing date: Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394; and (e) the location and availability of witnesses: Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394; BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [170], [256]. Consideration 15. The principal factors that point to the Supreme Court of Victoria as the more appropriate forum are: (a) the parties are based in Victoria and carry on business there; (b) all of the witnesses in the case reside in Melbourne. Those witnesses are likely to include a number of Dr Burmeister's patients. The only exception is that Dr Burmeister is likely to call one witness who resides in Sydney; (c) Dr Burmeister is represented by Victorian legal practitioners who have been acting for her for a number of months; and (d) the Victorian proceedings were commenced first. 16. The principal factors that point to the Supreme Court of New South Wales as the more appropriate forum are: (a) the parties agreed that their contracts were to be governed by New South Wales law and agreed to submit to the non-exclusive jurisdiction of courts of that state. The law of New South Wales is relevantly different to the law of Victoria because the laws of Victoria contain no equivalent to the Restraints of Trade Act 1976 (NSW); and (b) the case has been set down for hearing in New South Wales and directions have been made for the preparation for that hearing. 17. In my opinion, the first and fourth points in favour of Victoria carry little weight. The fact that the parties carry on business in that state is of itself of little significance where they agreed that their dispute would be governed by New South Wales law and submitted to the non-exclusive jurisdiction of New South Wales courts. No weight should be attached to the fact that proceedings were commenced first in Victoria. It is plain that those proceedings were commenced to try to forestall threatened proceedings which no doubt Dr Burmeister expected to be commenced in New South Wales. 18. Nor do I place much weight on the fact that Dr Burmeister has engaged lawyers in Melbourne. It is now common for interstate legal practitioners to appear in this jurisdiction and travel between Melbourne and Sydney is straightforward. Monash IVF has engaged lawyers in Sydney. Preparation for the hearing is well under way, and the likelihood is that neither party will want to change lawyers at this stage. Consequently, whatever happens the legal representatives of one party or the other will have to travel. 19. The real balancing exercise is between, on the one hand, the fact that all but one of the potential witnesses is resident in Melbourne and, on the other, the fact that the parties agreed that New South Wales law would govern their dispute and agreed to submit to the non-exclusive jurisdiction of courts in New South Wales. … 24. Other cases – particularly those referred to in para 14(c) above – make it plain that choice of law and jurisdiction clauses, particularly where the law of the chosen jurisdiction is different from the transferee jurisdiction, carry particular weight because they embody the agreement between the parties concerning their preferred venue. … 27. I accept that Dr Burmeister will suffer greater inconvenience if the case is heard in Sydney rather than Melbourne. But I do not think that that outweighs the choice of law and jurisdiction clause in this case. Wherever and whenever the case is heard, it will cause some disruption to Dr Burmeister's practice. The case is expected to take only three days. As I have said, travel between Melbourne and Sydney is straightforward. The evidence is that arrangements can be made to care for Dr Burmeister's patients in her absence. Those conclusions are consistent with the fact that Dr Burmeister has been travelling overseas for the past three weeks or so. 1. The Monash IVF case, above, and the cases referred to in paragraph 14(c) of that case (being decisions of Palmer J and Einstein J in the New South Wales Supreme Court), seem to place significant weight on the fact that commercial parties agreed that their dispute would be governed by New South Wales law and they also submitted to the non-exclusive jurisdiction of New South Wales courts, as in the present case: see in particular Taurus Funds Management v Aurox Resources Ltd [2010] NSWSC 1223 at [38]-[39]. At paragraph 24 in the Monash IVF case, Ball J emphasised that choice of law and non-exclusive jurisdiction clauses carry particular weight because they embody the agreement between the parties concerning their preferred venue. That fact was given particularly significant weight by Ball J in that case. 2. It should be noted that the rental agreements entered into between the parties in the present case are between commercial entities with the apparent clear capacity to look after their own commercial and legal interests. Submissions of the parties 1. The parties relied on both written and oral submissions. These submissions were helpful and concise. 2. The defendant submitted, in general summary, as follows: 1. All of the connecting factors in relation to the issues in dispute in the proceedings are in Victoria. The forklifts were provided in Victoria, negotiations for the agreements occurred in Victoria, maintenance to the forklifts was provided in Victoria, the witnesses relating to the condition of the forklifts are located in Victoria, possession was re-taken by the plaintiff of the forklifts in Victoria and the witness of the plaintiff who prepared reports and took photographs of the equipment is located in Victoria; 2. The County Court of Victoria has the most real and substantial connection with this dispute. It has jurisdiction to hear the matters in dispute in the proceedings; 3. It is a clear and compelling case for a stay; 4. The plaintiff has indicated that it intends to call one witness who is located in New South Wales being Mr Watkins but there is no indication how his evidence could be relevant to any issue in the proceedings; 5. The law that is relevant to the dispute is contract law at common law and the provisions of the Australian Consumer Law which is in this case Commonwealth legislation; 6. The fact that New South Wales law applies to the rental agreements is a neutral factor; 7. The non-exclusive jurisdiction clause does not preclude a party bound by that clause from commencing proceedings in a jurisdiction other than the jurisdiction specified in the clause; 8. A non-exclusive jurisdiction clause does not carry real weight where Federal legislation is involved; 9. The clear preponderance of likely relevant witnesses are located in Victoria; 10. The defendant operates its business in Victoria; 11. The plaintiff has business premises in Victoria; 12. The damage alleged in the Statement of Claim by the plaintiff to have been caused by the defendant must have occurred in Victoria; 13. The main issue in the case is whether the equipment was damaged and that damage occurred in Victoria if there was any; 14. Whilst the plaintiff has retained New South Wales solicitors it can readily retain Victorian solicitors if necessary; 15. If the proceedings are stayed in New South Wales and are recommenced in the County Court of Victoria there will be no or little thrown away costs; 16. The Federal Court decisions should be preferred in relation to the weight to be given to a non-exclusive jurisdiction clause as Federal jurisdiction is involved under the Australian Consumer Law in the present case. 1. Counsel for the plaintiff submitted as follows, in general summary: 1. The court must undertake a balancing exercise in relation to the relevant factors pointing towards and against a stay; 2. Paragraph 15 of Mr Nasimi's affidavit was admitted only as to his belief. No detail is provided in relation to the number or identity or relevance of the witnesses said to be located in the State of Victoria; 3. The plaintiff intends to call at least one lay witness located in New South Wales and, if necessary, any expert witnesses will be from New South Wales; 4. The approach of the New South Wales courts, particularly that of Justice Ball in the Monash IVF Pty Ltd case, above, should be preferred to the comments of the Federal Court judges in the authorities relied on by the defendant. The choice of law clause and the non-exclusive jurisdiction clause should be given particular weight because that was the agreement between the parties concerning their preferred venue; 5. As Federal law is involved there is no reason why the County Court of Victoria would be the appropriate court to consider Federal law. The District Court of New South Wales would be equally suitable; 6. The implications and restrictions arising from the COVID-19 pandemic are highly relevant. This has resulted in greater use of AVL facilities, particularly by the County Court of Victoria; 7. The matter is a commercial matter and normally affidavits would be ordered. Thus the evidence in chief of the parties would be by way of affidavit and any cross-examination may be limited; 8. The fact that certain witnesses might be located in Victoria is not a sufficient countervailing factor in the age of electronic communication and interstate travel to a non-exclusive jurisdiction clause which is "a potently significant factor" in determining whether to grant a stay. The courts have consistently recognised that the party should be held to their bargain unless there is some strong reason not to; 9. The defendant has not established a clear and compelling case for a stay; 10. Even if the court were persuaded that the County Court of Victoria is the appropriate court, the court needs to consider whether it would grant a stay as a matter of discretion. The court should not do so; 11. Slight factors in favour of one forum do not render it in the interests of justice to stay the proceedings and compel the plaintiff to start again in a jurisdiction less convenient to it bearing in mind s 56 of the Civil Procedure Act 2005 (NSW); 12. Evidence can be given by video link; 13. Since the COVID-19 pandemic commenced many matters are run via a virtual court satisfactorily. Consideration 1. It is necessary in order to determine the application, for the court first to consider the factors outlined in s 20(4) of the Act: 1. The places of residence of the parties and of the witnesses likely to be called in the proceedings – the plaintiff company is registered in New South Wales and has its head office in New South Wales. The defendant company operates its business in Victoria. The plaintiff's head office as well as the plaintiff senior and executive management team and its internal legal department are in New South Wales. The plaintiff has a branch office in Victoria. One of the plaintiff's witnesses is located in New South Wales. Another is located in Victoria. Any expert witnesses to be retained for the plaintiff are likely to be based in New South Wales. It seems that all the witnesses for the defendant are located in Victoria and they will be relevant to the negotiations for the contract and the misleading or deceptive conduct allegations. It seems clear that there will be more witnesses called, and potentially significantly more witnesses, who are located in Victoria; 1. The place where the subject matter of the proceeding is situated – the main subject matter of the proceeding is the forklifts which are said to have been damaged. They were supplied, maintained and allegedly damaged in Victoria. However, they have been sold by the plaintiff and their present location is unknown. The evidence establishes that a likely witness for the plaintiff prepared a report on the forklifts and has taken photographs of them. The value of a chattel such as the forklifts at the time that the plaintiff took re-possession of them could be ascertained with the assistance of expert evidence; 2. The financial circumstances of the parties, so far as the court is aware of them – it appears that the parties are both commercial entities of some substance. There is no suggestion that it would be financially oppressive to a party to have the proceedings heard in a particular jurisdiction; 3. Any agreement between the parties about the court or place in which the proceedings should be instituted – there is a non-exclusive jurisdiction clause for the courts of New South Wales as discussed above; 4. The law that would be most appropriate to apply in the proceeding – the rental agreements require the law of New South Wales to be applied. However, from the pleadings it appears that the common law of contract and Commonwealth legislation will be relevant rather than particular New South Wales or Victorian legislation; 5. Whether a related or similar proceeding has been commenced against the person served or another person – this is not relevant. 1. I accept the submission by counsel for the plaintiff that it is likely that evidence in chief in the proceeding will be ordered to be by way of affidavit. The proceedings are commercial proceedings. 2. It seems clear that the majority of witnesses are likely to be located in Victoria. If the proceedings remained in New South Wales then, unless proceedings were conducted by way of video link, the Victorian based witnesses would have to come to New South Wales which would involve some expense and inconvenience. It may also be difficult with the current COVID-19 restrictions. However, as Siopis J stated in Plantagenet Wines, above, at 67: "67 Further, I accept that the inconvenience of witnesses having to travel can be often be mitigated by taking evidence by video link; and that the Court does have the power to order that the trial be conducted in New South Wales. However, notwithstanding, these comments, in my view, some weight must be accorded to the prospect that there will be witnesses called by Lion Nathan who are resident outside of Western Australia, who will be required to travel to Perth (if that is the trial venue) to give evidence at the trial of the Federal Court proceedings. …" 1. Further, in the Monash IVF case, above, Ball J noted that a number of witnesses may be reluctant or may find it difficult to travel. In the end, this factor did not in that case outweigh the choice of law and non-jurisdiction clause in the relevant contract: paragraphs 19 and 27. In Monash IVF, Ball J noted that all but one potential witness was resident in Melbourne. 2. I do not regard the choice of law clause as being significant in the present case. It is a neutral factor as Commonwealth law and the common law is involved. 3. Having considered the authorities and the evidence in the light of the submissions, I prefer the line of authorities discussed and followed by Ball J in the Monash IVF case, above, to the views expressed in the Federal Court cases cited. In my view, it is of some real significance that the parties in the present case who are commercial entities agreed to choose the courts of New South Wales as the non-exclusive venue for determining any disputes. 4. The various locations of the businesses in my view are not decisive. Whilst the defendant operates its business in Victoria and the plaintiff has a branch office in Victoria, the plaintiff's head office is in New South Wales and the plaintiff's lawyers are in New South Wales. 5. I also take into account that the defendant has filed its Defence and accordingly has undertaken considerable work in determining an appropriate response to the case pleaded in the Statement of Claim. If the matter was stayed, it is likely the plaintiff would have to retain new solicitors as they only have an office in New South Wales. Despite the submissions made by counsel for the defendant, I think it is likely that this will involve some additional inconvenience and expenditure. 6. Considering all the factors put forward by the parties and the matters I have referred to above, in my view this is a finely balanced matter. However, I am not satisfied that the defendant has established that it is a clear and compelling case for a stay in the circumstances. The non-exclusive jurisdiction clause in a commercial case is of particular significance in my assessment. In my view, the location of the majority of witnesses and the plaintiff's business in Victoria do not outweigh this factor. Also, the plaintiff's head office and solicitors are located in New South Wales. 7. Section 20(4) does not exclude other factors being taken into account. It is also clear that the court has a discretion under s 20(3): St George Bank Ltd v McTaggart, above at [17]. 8. I would also refuse the application for a stay on discretionary grounds, even if I was of the view that the County Court of Victoria was the "appropriate court" to determine the matters in dispute. 9. The COVID-19 pandemic has created at various times significant restrictions both in the State of Victoria and the State of New South Wales: see paragraph 17 of the Nasimi affidavit. It has resulted in courts adopting different procedures not only for hearing applications and legal submissions but also for hearing evidence from witnesses even on contested matters. I can take judicial notice of the fact that courts have, in recent times, heard entire trials by a virtual court. It is unclear what travel restrictions may or may not be in force in the two states when the current matter would come on for hearing whether in the County Court of Victoria or in this court. It may well be that the matter is heard by video link or substantially by video link. 10. There are good virtual court communications in existence between Melbourne and Sydney. In my view, any witnesses located in Victoria could readily give oral evidence, other than by way of evidence in chief, by a virtual court. These matters in my view are relevant to the exercise of the discretion. In my opinion there would be no obvious prejudice to either party if evidence was given in that manner. That could be readily done if the matter remained for hearing in this court. 11. I also take into account s 56 of the Civil Procedure Act 2005 (NSW). If a stay were granted as sought, the plaintiff would need to commence fresh proceedings in Victoria and retain new solicitors with some additional delay and expense being incurred. 12. For those reasons, I would also reject the application in the exercise of my discretion. In doing so, I have also taken into account all the matters which I have previously referred to and which I have set out above in my substantive consideration. 13. As the defendant has been unsuccessful in its application, the usual order as to costs should be made. This was accepted by counsel for the defendant in oral submissions. Determination 1. For the above reasons I make the following orders: 1. The Notice of Motion filed on 10 September 2020 is dismissed. 2. The defendant is to pay the plaintiff's costs of the Notice of Motion filed on 10 September 2020 as agreed or assessed. 1. The parties should approach the Judicial Registrar to have the matter listed for further directions. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2020