Robert McGill Freier & Anor v Australian Postal Corporation [2012] NSWSC 46

Supreme Court New South Wales

Medium Neutral Citation: Robert McGill Freier & Anor v Australian Postal Corporation [2012] NSWSC 46 Hearing dates: 3 February 2012 Decision date: 03 February 2012 Jurisdiction: Equity Division - Duty List Before: Ball J Decision: See paragraphs 9 and 10 of this judgment. Catchwords: PROCEDURE - Cross-vesting legislation - Application to transfer proceedings to the Supreme Court of Tasmania - whether transfer "in the interests of justice" - balancing interests of plaintiff, defendant and public Legislation Cited: Jurisdiction of Courts (Cross-vesting) Act 1987 Cases Cited: BHP Billiton Limited v Schultz [2004] HCA 61, 221 CLR 400 Category: Procedural and other rulings Parties: Robert McGill Freier (First Plaintiff) Glenda Letetia Freier (Second Plaintiff) Australian Postal Corporation (Defendant) Representation: A P Cheshire (Plaintiffs) J C Giles (Defendant) Clinch Long Letherbarrow (Plaintiffs) Norton Rose (Defendant) File Number(s): 2012/31603

EX TEMPORE Judgment 1These proceedings were commenced by the plaintiffs on 31 January 2012. The plaintiffs together are franchisees of the defendant ( Australia Post ). They operate a post office outside of Hobart in a building that they acquired some time ago. Australia Post has purported to terminate the franchise agreement and in these proceedings the plaintiffs seek both interlocutory and final relief restraining Australia Post from doing so. The plaintiffs put their case on various grounds. In particular, they assert that the notice purporting to terminate the franchise agreement was invalid. Alternatively, they allege that Australia Post engaged in unconscionable conduct or possibly breached the Franchising Code of Conduct. 2Before me today is a motion filed by Australia Post seeking to transfer the proceedings under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 to the Supreme Court of Tasmania. That section provides: (2) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and (b) it appears to the first court that: ... (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceedings to that other Supreme Court. The section has been construed in a number of cases. In particular, in BHP Billiton Limited v Schultz [2004] HCA 61, 221 CLR 400, Gleeson CJ, McHugh and Heydon JJ in a joint judgment said at [14]: If it appears to that court [that is, the court which is asked to transfer the proceedings] that it is in the interests of justice that the proceedings be determined by another designated court, then the first court 'shall transfer' the proceedings to that other court. Their Honours went on to explain at [15]: The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. 3Australia Post submits that it is appropriate to transfer these proceedings to the Supreme Court of Tasmania for a number of reasons. First, it points to the fact that the plaintiffs live in Tasmania, approximately an hour's drive from Hobart. Second, Australia Post points to the fact that its offices are in Melbourne and Hobart and that, for the most part, its employees that it is likely to call as witnesses are based in Melbourne. It appears, however, that one of those possible witnesses is based in Tasmania and now commutes to Queensland for work and another possible witness is resident in Sydney. Australia Post also points to the fact that any documents relevant to the case are likely to be located in Tasmania. Third, Australia Post relies on the fact that the relevant events happened in Tasmania and that the post office in question is located in Tasmania. Fourth, Australia Post relies on the fact that the agreement is governed by the law of Tasmania. Lastly, Australia Post submits that the only relevant connection between the case and Sydney is the fact that the plaintiffs have retained Sydney lawyers. 4In my opinion, in looking at the interests of justice in this case, it is convenient to analyse it from the point of view of the plaintiffs, from the point of view of Australia Post, and from the point of view of the public interest. Looking at it from the point of view of the plaintiffs, I accept that the interests of justice favour the case remaining in Sydney. The plaintiffs have chosen to use lawyers based in Sydney because those lawyers have some familiarity in dealing with Australia Post. That seems to me a legitimate matter that the plaintiffs can take into account in determining who to retain to act for them and where to commence proceedings. The result is that, if the proceedings are transferred to Hobart, the plaintiffs will either have to incur additional costs in retaining lawyers in both Hobart and Sydney or, alternatively, have to give up the benefit that they sought to achieve by commencing proceedings in Sydney. 5In my opinion, there is no particular public interest in having the proceedings heard in either Sydney or Hobart. I accept the submission of Mr Giles, who appeared for Australia Post, that both Supreme Courts should be equally capable of dealing with the case expeditiously. Although the franchise agreement is governed by Tasmanian law, there is no suggestion that determination of the case will require the application of Tasmanian legislation or will raise any other questions which make it more appropriate for those issues to be determined by the Supreme Court of Tasmania rather than this court. 6Looked at from the point of view of Australia Post, it is difficult to see how the interests of justice favour Hobart over Sydney. As I said, most of the witnesses for Australia Post are based in Melbourne and consequently whether the case is heard in Hobart or in Sydney those witnesses will have to travel. It is true that one potential witness is based in Hobart, but again, as I have said, that witness travels to Queensland for work and consequently I cannot see that the location of that witness is a significant factor. Also, as I have said, one possible witness is based in Sydney. 7I accept Mr Giles' submission that it is not yet possible to identify all the witnesses who may be involved in the case and that it is possible that one or more of those witnesses will be based in Hobart. However, I am not satisfied that that factor outweighs the fact that if the proceedings are transferred, the plaintiffs will be required to incur additional costs in employing another firm of solicitors or will be required to give up the legal advisers they have chosen and waste the costs that they have already incurred. 8It is also relevant that Australia Post is a large organisation. It is currently using solicitors based in Melbourne who have an office in Sydney. The likelihood is that, if proceedings were transferred to Hobart, Australia Post will continue to use the solicitors it uses in Melbourne and will retain other lawyers in Hobart. The result of transfer, then, would be that Australia Post would be in a position where it could continue to use legal advisors of its choice, whereas that is something that the plaintiffs may be deprived of. 9Having regard to these matters I am not satisfied that it is in the interests of justice to transfer the proceedings. Consequently, I dismiss the motion. 10The defendant should pay the plaintiffs' costs of the motion.