Stiftung Ausbildingsfond Jung'sche Psychologie v Penhall-Jones [2003] NSWLC 6

Local Court of New South Wales

CITATION: Stiftung Ausbildingsfond Jung'sche Psychologie v Penhall-Jones [2003] NSWLC 6 JURISDICTION: Civil PARTIES: Stiftung Ausbildingsfonds Jung'sche Psychologie Margaret Penhall-Jones FILE NUMBER: 10373/99 PLACE OF HEARING: Downing Centre Local Court Sydney DATE OF DECISION: 10/04/2001 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Civil - Forum non conveniens LEGISLATION CITED: Local Court (Civil Claims) Act 1970 Local Court (Civil Claims) Rules 1988 Rajski v Computer Manufacture & Design Pty Ltd (1983) 2 NSWLR 122 Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 171 CLR 538 CASES CITED: Oceanic Sunline Special Shipping Co In v Faye (1988) 165 CLR 197 Laurie v Connell (1958) 98 CLR 310 National Bank v Winborne (1979) 11 NSWLR 156 Vertzjas v Singapore Airlines Ltd (2000) 50 NSWLR 1 REPRESENTATION: Mr Burke Counsel for Plaintiff Mr Rueben for Defendant ORDERS: 1. Notice of Motion filed by the defendant dismissed except as to the order for the security of costs.; 2. I propose to make the orders sought by the Plaintiff and the Third Party Notice provisionally filed in these proceedings will be struck out.; 3. The defendant should pay the plaintiff's costs in relation to the defendant's motion but such costs should take into account the order for the security of costs. If the parties are unable to agree on the amount of the orders for costs, then the matter can be relisted before me.

Reasons for Decision 1 This matter was argued on the final occasion before me on 16 March 2001 when Mr Burke of Counsel appeared for the plaintiff and Mr Reuben of Counsel appeared for the defendant. 2 In this Judgment I shall refer to the plaintiff as 'The Lending Institute'. I shall refer to the proposed third party as 'The Teaching Institute'. 3 There are three Notices of Motion before the Court. 4 The Lending Institute issued a statement of claim on 17 September 1999 seeking the sum of $14,284.24. The amount claimed was the sum alleged to be outstanding under two loans. The first made 17 May 1993 required repayment by the 31 August 1998 and the second made 11 November 1993 required repayments by 31 December 1998. 5 It appears the defendant undertook a course in Carl Jung's Analytical Method of Psychology at The Teaching Institute. It is alleged that she obtained the loans from the plaintiff to assist in paying the fees of The Teaching Institute. 6 The plaintiff and The Teaching Institute are situated in Switzerland. The contracts of loan were made in Switzerland when the defendant was then in Switzerland. The agreements for loan included the following provision; "11. The candidate is expressly and emphatically advised of the following agreed place of jurisdiction: 7 For the settlement of any disputes from this legal contract, the debtor shall recognise the courts of justice of the place of the Foundation's domicile (Zurich) to be internationally responsible and Swiss law to be applicable. However, the Foundation has the right to also take legal action against the debtor at her ordinary place of jurisdiction, upon application of Swiss substantive law. The candidate thus also expressly chooses the operational domicile at the business location of the Foundation (Zurich) for fulfilment of her repayment obligations. 8 The defendant now resides in New South Wales. The defendant was served in New South Wales. 9 A Notice of Grounds of Defence was filed on 15 November 1999. Whilst the Statement of Claim does not set out the purpose of the loan, the defence alleges the defendant had been the subject of sexual or other harassment by an officer of The Teaching Institute, and had been unable to complete her studies and had therefore suffered personal and financial loss. The defendant alleges a total failure of consideration as between the defendant and the plaintiff. 10 A Certificate of Readiness was filed on 30 August 2000 and the matter was listed for callover on 23 October 2000. On that date it appears an order was made granting the defendant leave to serve a Third Party Notice. The Third Party Notice was provisionally filed on 17 November 2000 on the basis the defendant would apply to the Supreme Court for leave to serve the Third Party Notice outside the jurisdiction. 11 On 22 November 2000 the defendant filed a Notice of Motion seeking the following orders; 1. That the Statement of Liquidated Claim filed in these proceedings be dismissed. 2. Costs. 12 The Notice of Motion was supported by an Affidavit of Patrick John Snowden the solicitor for the defendant sworn 21 November 2000. 13 The Notice of Motion was listed for hearing on 14 December 2000. The hearing was adjourned to 2 February 2001 when the matter first became before me and interestingly and extraordinarily optimistically, was said to take about half a hour. 14 On that day leave was granted to the defendant to file a further Notice of Motion seeking the following orders; 1. That the Statement of Liquidated Claim filed in these proceedings be stayed or dismissed on the following grounds: (a) The plaintiff has no legal status within NSW: (b) The Local Court of NSW is clearly an inappropriate forum for the hearing of these proceedings. In the alternative: 2. Pursuant to part 31 of the Local Court Rules security for costs of the defendant in the sum of $2,500.00. 3. Any other order the Court deems fit. 4. Costs. 15 The Notice of Motion was supported by an Affidavit of the solicitor for the defendant, Patrick John Snowden, sworn 12 December 2000. The Notice of Motion and Affidavit were filed in Court. Mr Burke, Counsel for the plaintiff, wished to cross examine Mr Snowden but he was unable to attend. My recollection is that the Affidavit was read subject to Mr Burke making objections and also having the right to cross examine Mr Snowden. Subsequently this did not occur. I do not believe the plaintiff will be prejudiced by such course of action.