AUCKLAND AGRICULTURAL PASTORAL & INDUSTRIAL SHOWS BOARD v SHARP SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER, SHELLER and BEAZLEY JJA 4 August 1998 [1998] NSWCA 22 LEAVE TO APPEAL — contract — tort — conflict of laws. Sheller JA. Ex tempore This is a summons for leave to appeal against a decision of Barr J made on 16 March 1998 vacating the hearing dates of a notice of motion which had been filed by the claimant, Auckland Agricultural Pastoral & Industrial Shows Board, in proceedings brought by the plaintiff and one of the opponents, Beverley Sharp, against the defendant, Thompson Australian Holdings Pty Limited, the other opponent. The claimant was the cross-defendant in a cross-claim brought by the defendant. The material before the Court on this summons consists of the summons itself, which was filed on 6 April 1998, a statement under Pt 51 r 4B (3) which appears to have been filed in June 1998, and an affidavit by Mark Robert Debenham of 10 June 1998, to which are annexed an affidavit by the plaintiff and a one page transcript of 16 March 1998 of the hearing before Barr J. In that transcript are set out the reasons for the decision against which it is now sought to appeal. None of these documents indicates with any clarity the nature of the proceedings. However, we have been told from the bar table that the plaintiff sued in respect of injuries which she suffered in 1991 in New Zealand at a show or craft exhibition in Auckland. Apparently, she was party to a contract with the defendant whereunder she was entitled to display wares at the exhibition in a stall for which she was to pay some rent. She was also to provide services to the defendant as a general workshop presenter and demonstrator. Apparently, while engaged in these activities she was injured in some way which has not been described. The defendant at the time was, we have been told, also in a contractual relationship with the claimant whereby the defendant was engaged to promote the use of the showground. The plaintiff brought the proceedings, we are told, in contract and in tort against the defendant. We do not know precisely what the allegations made were. Similarly, the defendant brought the cross-claim against the opponent seeking contribution as a co-tortfeasor but also in contract relying upon what we were told were implied terms in its contract with the claimant. Again, we have been told that the proceedings began in September 1996 and the cross-defendant claimant filed a motion in May 1997, the purpose of which was to have the cross-claim dismissed, either on the basis that the claim against it was not justiciable in New South Wales, or that the claim by the plaintiff against the defendant was not justiciable in New South Wales. Also, we were told that some claim was to be mounted that the New South Wales court was not an appropriate forum. Neither the notice of motion nor the evidence to support it have been placed before us. 2 UNREPORTED JUDGMENTS The notice of motion was eventually listed to be heard on 14 April 1998. However, an application was made by the plaintiff to have that date vacated and the hearing of the proceedings expedited. That application was made by the plaintiff and was the application that came before Barr J on 16 March 1998. According to the transcript, the application was opposed by counsel for the claimant. It does not appear that the defendant opposed it. The transcript records Barr J as saying: The separate issue, what has been called the 'jurisdictional question', has come about not by any conscious decision or order of the Court but rather by the way the defendant, or the cross-defendant, has raised this issue by the putting on of a notice of motion. Much of what has been said raises matters which might in another case make it attractive to determine separately the issue thereby raised from all other issues in the case. However, because of the age and state of health of the plaintiff, I think that those matters become much less attractive in the present case. It seems to me that if that matter can be got ready for hearing, then that should be done and all matters in issue between the parties ought to be dealt with at the one hearing. It is by no means unusual for questions of private international law to be considered and determined in these actions without the need to hive them off and deal with them separately. What I think should happen here and is the appropriate thing to do would be to vacate the hearing date. His Honour accordingly did that and expedited the hearing of the proceedings. We have been informed by counsel for the plaintiff that on 12 June 1998, on which occasion there was no appearance for the claimant, the proceedings were set down for hearing on 24 August 1998. I should observe that the affidavit of the plaintiff, which is annexed to Mr Debenham's affidavit, reveals that she is seventy four years of age, with a relatively limited lifespan and suffers from a serious illness. There is no explanation for the delay in this application for leave to appeal coming before the Court. Since Barr J made the orders against which it is now sought to appeal, this Court gave its decision on 27 May 1998 in James Hardie & Co Pty Ltd v Hall as Administrator ad litem of the Estate of Desmond Putt (unreported) Court of Appeal, 27 May 1998. In that decision, conclusions were reached about the application of the rule in Phillips v Eyre (1992) 66 ALJ 245 in cases where plaintiffs seek to recover damages for torts alleged to have been committed in New Zealand and covered in that country by no fault legislation. No doubt that decision would be relied upon in the present case to suggest that the plaintiff's claim against the defendant is not justiciable in New South Wales, so far as it is a claim for tort. Similarly, in that case the Court said that arguments based upon the principle of forum non conveniens should be dealt with before the substantial hearing of proceedings for obvious reasons of saving expense. In the present case, if indeed what was before Barr J were applications of that sort brought by the claimant in its notice of motion, there would, on the face of it, be good grounds for dealing with these matters before a substantial hearing of the matter. However, two things need to be said about this. Firstly, on the material before us, bearing in mind particularly that both in the main action and in the cross-claim there are claims based upon contracts, one at least of which may have been made in New South Wales, it is not necessarily so clear that it was not an UWRICKLAND AGRICULTURAL PASTORAL & INDUSTRIAL SHOWS BOARD v SHARB (Meagher JA) appropriate course to bring on the hearing of the proceedings in an expeditious way and deal with the various matters about justiciability and forum non conveniens at the time of the hearing. The second matter is that whatever the position may have been in April, the situation now in August is that the plaintiff's claim is listed for hearing in about three weeks' time. She is elderly and ill and wishes to have her case heard. I am not persuaded, bearing in mind the delay that has occurred and the lack of any clarity as to the nature of the proceedings or of the cross-claim, that this is a case in which we should grant leave to appeal. I should add that, when the various matters to which I have adverted were raised with counsel for the claimant, he applied to the Court for an adjournment of this application. The application for adjournment was opposed by the plaintiff and I am not persuaded that any good reason has been shown at this stage why such an adjournment should be granted against that opposition. Accordingly, in my opinion, the application for leave to appeal from the decision of Barr J should be dismissed with costs. Meagher JA. I agree. Beazley JA. I agree. Meagher JA. The order of the Court therefore is that the application be dismissed with costs. [1] Application dismissed. Counsel for the appellant: R S Sheldon Counsel for the first respondent: L R deV Tyndall Counsel for the second respondent: K R Smark Solicitors for the appellant: Ebsworth & Ebsworth Solicitors for the first respondent: Symons & Co Solicitors for the second respondent: Moray & Agnew