New South Wales Supreme Court CITATION : Reed-Union Corp v Sabra International Pty Ltd [2002] NSWSC 1170 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4953/02 HEARING DATE(S) : 19 - 21 November 2002 JUDGMENT DATE : 25 November 2002 Reed-Union Corporation (P) PARTIES : Sabra International Pty Limited (D1) Benver International Pty Limited (D2) JUDGMENT OF : Hamilton J COUNSEL : R J H Darke SC and M Darke (P) M J Steele (D1 & 2) SOLICITORS : Minter Ellison (P) Dibbs Barker Gosling (D1 & 2) CATCHWORDS : PROCEDURE [24], [92] - Courts and Judges generally - Courts - Concurrent jurisdiction of different courts - Transfer of proceedings under cross-vesting legislation - In general - Onus of proof - Applicant bears "persuasive" onus - Onus not discharged - Supreme Court procedure - Practice under Supreme Court Rules- Appearance - Application for transfer under cross-vesting legislation - Defendants cannot make application under Part 11 r 8 without filing appearance. LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5(2)(b)(iii) Supreme Court Rules 1970 Part 11 r 7 & r 8 CASES CITED : James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 Rosenboom v Qantas Airways Limited [2002] NSWSC 792 DECISION : Defendants must file appearance to make application for transfer under cross-vesting legislation. Application for transfer to Supreme Court of Victoria refused. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J MONDAY, 25 NOVEMBER 2002 4953/02 REED-UNION CORPORATION v SABRA INTERNATIONAL PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: This is an application under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Cross-Vesting Act") to transfer these proceedings to the Supreme Court of Victoria on the ground that it has been made out that it appears to the Court that it is otherwise in the interests of justice that the proceedings be determined by that court. 2 As was pointed out by Spigelman CJ in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at [3], the grant of the power to be exercised does not confer a discretion. Once a court has reached the satisfaction stipulated it must transfer the proceedings to the other court. However, there is a very large element of value judgment to be made by the court in coming or not coming to the requisite conclusion. So far as the question of whether or not the applicant bears an onus of establishing the relevant matter, then it is natural to regard the applicant as carrying at least the persuasive onus: see per Mason P in James Hardie supra at [100]; and see also per Sperling J in Rosenboom v Qantas Airways Limited [2002] NSWSC 792 at [53]. 3 These proceedings are brought by a United States corporation. It sought advice from, and had the proceedings commenced by, solicitors in Sydney and has retained Sydney based counsel. The subject transaction is a contract relating to the distribution of goods in Australia. The defendants carry on their operations in Victoria. Goods are distributed from Victoria throughout Australia including, it is not disputed, New South Wales. The defendants have Victorian solicitors. They have retained Sydney solicitors solely for the purpose of making this application. So far as the evidence shows, they have not selected the counsel who will conduct the proceedings. Their papers are in Melbourne, as are the witnesses they propose to call. The plaintiff proposes to call a witness resident in the USA, but none resident in New South Wales. 4 The considerations relevant to "the interests of justice" were discussed as follows by Mason P in James Hardie supra at [95] - [99]: "[95] The judgment of Higgins J (with whom Gallop J agreed) in Dawson [v Baker (1994) 120 ACTR 11] contains a summary of the case law relating to 'the interests of justice', a re-appraisal of Waterhouse (R W) v Australian Broadcasting Corporation (1989) 86 ACTR 1 (see at 22), and a useful checklist of factors relevant to the decision to order a transfer of category (iii) cases, namely: • application of substantive law; • forensic advantage or detriment conferred by procedural law; • the choice made by a plaintiff or a forum and the reasons for that choice; • substantive connections with the forum; • balance of convenience to parties and witnesses; and • convenience to the court system. [96] Other decisions support this broad approach to the 'interests of justice' inquiry. Thus, in Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394, Wilcox J said: "... In my opinion this phrase ought to be read widely. Under that rubric, as it seems to me, the Court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in 'the interests of justice' to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation." [97] See also Pegasus Leasing Ltd v Tieco International (Australia) Pty Ltd (1993) 61 SASR 195 and Bissett v Goliath Portland Cement Co Ltd [1999] VSC 145. [98] There remains a liberality about the Australian decisions under the Jurisdiction of Courts (Cross-vesting) Act compared to the recent English cases on forum non conveniens. However, to a considerable degree the Australian cases reflect the relative ease of transport and communication within Australia. There is also recognition that legal and cultural differences in the practice of law from law area to law area within Australia are relatively insignificant: see Pegasus Leasing (at 199-200), per Debelle J. [99] It follows that the plaintiff's choice of the tribunal and the reasons for it, both substantive and procedural, are relevant considerations." 5 Before proceeding to assess what may be required by the interests of justice in this case I should deal with one procedural aspect of the matter. After argument was complete a perusal of the file revealed that the defendant had not filed an appearance. The notice of motion by which this application is brought has a note on it by the Duty Registrar, "Okay to accept. Defendants don't wish to submit to the jurisdiction of the NSW Courts". 6 It appears to me that this course adopted by the defendant was erroneous, although I do not doubt it was followed in good faith. Part 11 r 7 of the Supreme Court Rules 1970 providing for conditional appearances was revoked in 1988. It was replaced by Part 11 r 8 providing that a defendant may, on notice of motion, make various applications without filing an appearance. By r 8(3) it is provided that the making of such an application shall not be treated as a voluntary submission to the jurisdiction of the Court. The applications include setting aside the originating process or service ((a) and (b)) and declining in its discretion to exercise its jurisdiction in the proceedings (h). 7 I had the proceedings restored to the list and raised this matter with the defendants. It was frankly avowed that they had sought to proceed under r 8(1)(h). But, whereas r 8(1)(h) would be an appropriate vehicle for an application to the Court to decline jurisdiction on the ground of forum non conveniens, it is not, in my view, appropriate to the course of action of inviting the Court to exercise its jurisdiction under s 5(2) of the Cross-Vesting Act. Here, ex hypothesi, the Court is being asked to exercise jurisdiction conferred on it by that provision and this is not within the terms of r 8(1)(h). Although the principles in forum non conveniens cases are often discussed as analogous in cases relating to applications for transfer under the Cross-Vesting Act (see James Hardie and Rosenboom supra), the applications are of different kinds, as I have indicated. 8 Upon my expressing this view to the defendants, the defendants undertook to file an appearance and to proceed with their application under the Cross-Vesting Act, which they have done, and that is the application which I now proceed to determine. 9 The defendants' strongest point is the greater connection that the subject matter of the proceedings has with Victoria than New South Wales. That appears from what I have said in [3] above. But the subject matter does have connection with New South Wales because of the distribution of goods into New South Wales under the relevant agreement. 10 There was some exaggeration in the submissions made on both sides. I thought the plaintiff's submissions exaggerated when it was suggested that it would be deprived of the solicitor and counsel of its choice by the proceedings being transferred to Victoria, particularly by the likely necessity of having counsel appear in interlocutory applications. Equally, I thought the defendants' submissions exaggerated so far as they concerned the difficulty of dealing with the matter in a Sydney Court because the papers were in Melbourne. 11 It is true that some witnesses are in Melbourne and may have to be brought to Sydney, but it must be borne in mind that the estimates of the length of this case are two to a maximum of five days. This is not a case in which witnesses are going to have to be moved from city to city in large numbers or for long durations, nor can one imagine that the papers involved in a case of this length, albeit commercial, are mountainous. 12 It seems to me that realistically the plaintiff will suffer some inconvenience by being obliged to take Sydney lawyers to Melbourne on occasions, if the case goes to Melbourne. Equally, the defendants may be inconvenienced in the same sort of way, if it stays in Sydney. The ease of transport in Australia has already been noted in the context of this section in James Hardie supra at [98]. Sydney and Melbourne are close together and joined by very frequent air services and courier services, as well as there being the availability of communications in the 21st century by fax and e-mail. 13 The defendants have suggested that the plaintiff cannot govern the venue by choosing Sydney advisers and, I think, hints that the advisers were chosen by the US client to ensure a trial in Sydney. 14 Frankly, I find this case evenly balanced. I infer that the plaintiff chose lawyers in Sydney because they were lawyers it felt able to trust through former dealing or recommendation, rather than to foreclose the venue. There is at least some connection with both jurisdictions. The plaintiff chose to bring the proceedings in Sydney for reasons I have indicated. The difficulties in moving people and documents in comparatively small numbers from Melbourne to Sydney or vice versa are not great. I bear in mind what has been said about the persuasive onus. In all the circumstances, I am not persuaded that it has been established in the requisite way that it is in the interests of justice that these proceedings be determined by the Supreme Court of Victoria. Therefore, the application will be refused. 15 The orders of the Court will be that the defendants' notice of motion filed on 25 October 2002 is dismissed. Costs reserved. ********** Last Modified: 12/13/2002 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.