AB v XY

Case [2020] NSWDC 27

District Court


New South Wales

Medium Neutral Citation: AB v XY [2020] NSWDC 27
Hearing dates: 20 February 2020
Date of orders: 27 February 2020
Decision date: 27 February 2020
Jurisdiction:Civil
Before: Dicker SC DCJ
Decision:

(1) The Notice of Motion filed 30 May 2019 is dismissed.
(2) The defendant is to pay the plaintiff's costs of the Notice of Motion filed 30 May 2019 as agreed or assessed.
(3) The parties are to make any application for a variation of order (2) above as to costs within 14 days.
(4) The exhibits are to be retained for a period of three months.

Catchwords: Civil procedure – jurisdiction – inappropriate forum – whether the court should decline jurisdiction or stay the proceedings on the basis that New South Wales is a clearly inappropriate forum to determine the proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2
Hardaker v Mana Island Resort (Fiji) Ltd [2018] NSWSC 1863
McGregor v Potts (2005) 68 NSWLR 109; [2005] NSWSC 1098
Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218
Nilepac Pty Ltd v Amstelside BV [2020] NSWSC 57
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Photios v Photios [2019] NSWCA 158
Puttick v Tenon Limited (2008) 238 CLR 265
Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24
Category:Procedural and other rulings
Parties: AB (Plaintiff)
XY (Defendant)
Representation:

Counsel:
Mr M Windsor SC with Ms E Yasumoto (Plaintiff)
Dr C Birch SC with Mr S McCarthy (Defendant)

  Solicitors:
Carroll & O'Dea Lawyers (Plaintiff)
Vobis Equity Attorneys (Defendant)
File Number(s): 2019/00113051

Judgment

  1. Before the court is an application by the defendant, XY, by way of a Notice of Motion filed on 30 May 2019, for the following orders:

“1. An Order pursuant to rule 12.11 (1 )(h) of the Uniform Civil Procedure Rules 2005 that the Court declines to exercise jurisdiction in respect of the Statement of Claim filed on 11 April 2019, or, in the alternative,

2. An Order pursuant to section 67 of the Civil Procedure Act 2005 that the proceedings be permanently stayed on the ground that the Courts of New South Wales are clearly an inappropriate forum for such proceeding.”

  1. The application was resisted by the plaintiff, AB, who submits that the proceedings should remain in this court.

  2. A Statement of Claim was filed by the plaintiff on 11 April 2019. No Defence has yet been filed by the defendant. In substance, it is alleged in the Statement of Claim by the plaintiff that the defendant sexually assaulted her in a toilet cubicle of a bathroom of a restaurant in Mykonos in the Hellenic Republic of Greece on 2 July 2016. It is alleged that the plaintiff and the…

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Details
AGLC
AB v XY [2020] NSWDC 27
Case
[2020] NSWDC 27
Decision Date

CaseChat Overview and Summary

AB, the plaintiff, brought proceedings against XY, the defendant, in the Federal Circuit and Family Court of Australia. The plaintiff sought to have the court determine a variety of matters related to the parties' financial arrangements and the care of their children. The defendant challenged the court's jurisdiction on the basis that New South Wales was a clearly inappropriate forum to determine the proceedings. This was on the grounds that the parties and their children had no ties to New South Wales, all relevant evidence was located in Queensland, and there were other proceedings already underway in Queensland. The court had to decide whether it should decline jurisdiction or stay the proceedings on the basis that New South Wales was a clearly inappropriate forum.

The court considered the relevant principles of forum non conveniens and found that the proceedings should not be stayed. It found that the plaintiff had a legitimate interest in having the proceedings heard in New South Wales, the parties had not made any representations to the court that they wished to avoid a multiplicity of proceedings, and there were no strong ties to Queensland. The court found that the plaintiff had demonstrated a legitimate interest in having the proceedings heard in New South Wales and that the defendant had not established that New South Wales was a clearly inappropriate forum.

The court dismissed the defendant's application and ordered that the defendant pay the plaintiff's costs of the Notice of Motion filed 30 May 2019 as agreed or assessed. The parties were to make any application for a variation of order as to costs within 14 days. The exhibits were to be retained for a period of three months.

Orders

Orders of the court

(1) The Notice of Motion filed 30 May 2019 is dismissed.

(2) The defendant is to pay the plaintiff's costs of the Notice of Motion filed 30 May 2019 as agreed or assessed.

(3) The parties are to make any application for a variation of order (2) above as to costs within 14 days.

(4) The exhibits are to be retained for a period of three months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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