LEIGHTON CONTRACTORS PTY LTD v HOSSCO MARBLE AND GRANITE MANUFACTURING PTY LTD [1994] NSWCA 181

LEIGHTON CONTRACTORS PTY LTD v HOSSCO MARBLE & GRANITE MANUFACTURING PTY LTD

SUPREME COURT 0F NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 18 April 1994, 18 April 1994

[1994] NSWCA 181

PRACTICE & PROCEDURE — cross-vesting legislation — transfer of proceedings from Supreme Court of New South Wales to Supreme Court of Queensland — determination of forum with which the case had "its most natural connection" — Judge of Supreme Court of NSW refuses transfer — whether his refusal was supported by reasons or adequate reasons — whether the refusal was a "decision" against which no appeal lay under the Jurisdiction of Courts (Cross-Vesting) Act 1987, s13(a) — whether refusal of reference to arbitration as provided in contract between parties evidences error

WORDS & PHRASES — "decision of the Court". WORDS & PHRASES — "decision of the Court".

ARBITRATION — commercial arbitration — contract contains clause submitting disputes to arbitration — possible dispute under "new agreement" — proceedings commenced in Supreme Court of New South Wales — application for transfer of proceedings to Queensland where dispute arose and most evidence existed — application for reference to arbitration in accordance with head contract — primary judge (O'Keefe CJ Comm D) refuses reference to arbitration or transfer to Queensland — on application for leave to appeal

Held: (Mahoney and Meagher JJA; Kirby P dissenting): Leave to appeal should be refused because:

(1) The decision challenged was a discretionary one of practice and procedure where no relevant error was shown; and

(2) Contrary to the submission of the claimant, the judge gave sufficient reasons for his decision. Bankinvest AG v Seabrook and Ors (1988) 14 NSWLR 711 (CA) and Soulemezis v Dudley (Holdings) Pty Ltd (1987)10 NSWLR 247 (CA) considered.