Matt Ashby v David John Caldwell [2014] NSWSC 1356

Supreme Court New South Wales

Medium Neutral Citation: Matt Ashby v David John Caldwell [2014] NSWSC 1356 Hearing dates: 1 October 2014 Decision date: 01 October 2014 Jurisdiction: Equity Division Before: Young AJA Decision: 1.The matter be transferred to the Supreme Court of Victoria. 2.Plaintiff to pay the defendants costs of the motion. Catchwords: PRACTICE & PROCEDURE - cross-vesting - transfer of proceedings to another state - whether to transfer proceedings to Victoria - whether balance of justice favours transfer - whether sufficient connection with Victoria - whether to transfer to Victoria where pending disciplinary action in relation to contempt of New South Wales court pending - where witnesses resident in Victoria - where dishonesty occurred in Victoria - where only real connection to New South Wales is the headquarters of the plaintiff Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 Category: Principal judgment Parties: Matt Ashby (plaintiff) David John Caldwell (defendant) Representation: Counsel: Mr C Harris SC (plaintiff) Dr C S Ward (defendant) Solicitors: HWL Ebsworth (plaintiff) Mills Oakley Lawyers (defendant) File Number(s): 2014/00213091 Publication restriction: None

Judgment 1This is a motion to transfer these proceedings to the Supreme Court of Victoria pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987. The defendants were junior officers of the plaintiffs. The plaintiffs appear to be an Australian-wide partnership of, basically, accountants, but also of persons who have now gravitated into the field of forensic accounting and the defendants were employed in their Melbourne office in that section. The plaintiffs say that the defendants have dishonestly appropriated their property and have set up a business in competition. 2Orders were made in this Court that certain evidence was to be kept confidential. There is a suggestion - indeed more than a suggestion - that in fact what has happened is that that material was shown to a competitor of the plaintiffs in the guise of obtaining an expert report. I took a very serious view of that and the solicitor involved was asked to give an explanation, which he says he has given. I received it and put it in a sealed envelope to be dealt with after the end of the case, as it may be that that was a contempt of this Court. 3Mr Harris SC, who appears for the plaintiffs, says that that is a relevant matter why this case should be retained in the New South Wales Court because if it is a contempt, it is a contempt of this Court and not the Supreme Court of Victoria. However, as it would appear most likely that that contempt matter, if the explanation in the sealed envelope is not considered to be sufficient, would be heard in any event in the Supreme Court of New South Wales or by the Legal Practitioners Registration Board for Australia or New South Wales, as the case may be, only after the conclusion of the proceedings. It seems to me that it has limited effect on whether, in the interests of Justice, this case should be transferred to the Supreme Court of Victoria. 4The defendants say that they are relatively poor people and it would be a great inconvenience and expense for them to have to travel up to New South Wales and stay in Sydney hotels. Normally matters of that nature get very little sympathy because if, as the plaintiff says, you have stolen your employer's property, those sort of inconveniences just flow naturally, but they do have, to my mind, some significance, even though they do not impinge upon the actual conduct of the case. 5The vital fact in the present case seems to me that the evidence will come from witnesses who are resident in Victoria, at least on the defendants' side, and probably to some extent, although most of the affidavits are now in, on the plaintiffs' side as well, the dishonesty occurred in Victoria. The real connection with New South Wales is that the administrative centre of the plaintiff is in New South Wales and Mr Khoury, a partner in the National partnership, is situated in New South Wales and would need to go to Victoria. It seems to me that in all the circumstances the balance of Justice requires that the matter be transferred to the Supreme Court of Victoria and I so order. 6I order that the plaintiff pay the defendants' costs of the motion.