Australian Foods Co v Durham Pastoral Co [2004] NSWSC 26

New South Wales Supreme Court

CITATION : Australian Foods Co v Durham Pastoral Co [2004] NSWSC 26 HEARING DATE(S) : 5 February 2004 JUDGMENT DATE : 5 February 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : Application for leave to appeal fails.

CATCHWORDS : Leave to appeal - dismissal for want of jurisdiction - stay because of inappropriate forum. Local Courts (Civil Claims) Act 1970, s 17. LEGISLATION CITED : Judiciary Act 1903, s 78B (C'th). Service and Execution of Process Act, 1992 s 20 (C'th). CASES CITED : N/A Australian Foods Co Pty Ltd (Applicant) PARTIES : v Durham Pastoral Co Pty Ltd (Respondent) Attorney General of New South Wales (Intervenor) FILE NUMBER(S) : SC 11603 of 2003 Mr I Archibald (Applicant) COUNSEL : Mr J Clarke (Respondent) K M Guilfoyle (Intervenor) Gavin Wells, Corporate Solicitor (Applicant) SOLICITORS : Long Howland Houston (Respondent) I V Knight - Crown Solicitor - (Intervenor)

LOWER COURT Local Court JURISDICTION : LOWER COURT 93 of 2002 Local Court Gunnedah FILE NUMBER(S) : LOWER COURT T Murphy LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

5 February 2004

11603 of 2003 Australian Foods Co Pty Ltd v Durham Pastoral Co Pty Ltd

JUDGMENT 1 MASTER: The applicant entered into a contract with the respondent for the purchase of mung beans. The contract was not performed. Delivery and payment for the mung beans did not take place. 2 On 23 August 2002, the respondent brought proceedings in the Local Court at Gunnedah claming damages for breach of contract. The claim was in the order of the sum of $35,000 plus interest. 3 On 13 January 2003, the applicant filed a Notice of Motion. The Notice of Motion contained inter alia the following :- "Move the Court for Orders that: a. A declaration that the contract the subject of these proceedings was made in Western Australia. b. The subject proceedings should be dismissed for want of jurisdiction in the State of New South Wales. c. Costs of the motion be awarded to the defendant. upon the Grounds appearing in the Affidavit of Pavan Shivnani dated 13 January 2003." 4 Affidavits were filed in the proceedings (including an affidavit sworn by Pavan Shivnani on 13 January 2003). This affidavit contained inter alia the following:- "…………………. 4) I make this affidavit to support AFC's application for a Stay of these proceedings under section 20 of the Service and Execution of Process Act 1992. ……………………. 13) I say that the Defendant company has a proper defence to these proceedings in respect of which I have obtained advice from the Defendants (sic) Western Australian solicitors. 14) I object to the matter being dealt with at the Local Court at Gunnedah in the State of New South Wales and say that there is no jurisdiction in the NSW Court on the basis that the contract was made in Western Australia." 5 The Notice of Motion came before Mr Murphy LCM. It was heard on 19 May 2003. 6 It appears that there was no formal tender or reading of affidavits. The transcript records the following:- "BENCH: I note the documents are filed, the submissions from each party. The motion relates to the jurisdiction of this Court to determine the claim. …………………………………………" 7 It appears that the learned Magistrate had before him written submissions from the parties. These submissions were supplemented by oral argument made on 19 May 2003. 8 At the conclusion of the hearing, the learned Magistrate gave an indication that he did not propose to grant the relief sought and that detailed reasons would be subsequently given. 9 On 2 June 2003, the reasons were delivered and the Notice of Motion was dismissed with costs. 10 The reasons reveal that the decision of the learned Magistrate rested on the question of whether or not the requirements of s 17 of the Local Courts (Civil Claims) Act 1970 (the Act) have been satisfied. Although there are references to "proper forum" in the transcript, it is clear that the basis of the decision was that he was satisfied that a material part of the cause of action arose in New South Wales. 11 On 30 June 2003, the applicant filed a Summons in this Court. The applicant seeks to appeal from the decision of the Local Court. Leave is required because it is sought to appeal from an interlocutory decision. 12 The grounds of appeal set forth in the Summons raise a number of matters (including a failure to take into account the provisions of s 20 of the Service and Execution of Process Act 1992, the inconsistency between s 17 of the Act and s 20, an error in finding that a material part of the cause of action arose in New South Wales). 13 The application for leave was heard on 5 February 2004. Upon the completion of the hearing of that application I expressed the view that I was satisfied that the application for leave should be refused and I dismissed the Summons with costs. By arrangement with the parties, the course was adopted of forwarding detailed reasons to them in due course. Those reasons are comprised herein.