Aramayo & Ors & Vardy & Ors (Civil Dispute)
[2011] ACAT 69
•28 September 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ARAMAYO AND ORS & VARDY AND ORS (Civil Dispute) [2011] ACAT 69
XD 713 of 2011
Catchwords: CIVIL DISPUTE – interim application - permanent stay – withholding of payment pending judgment – property in NSW and other NSW elements – Tribunal’s jurisdiction to exercise the powers of the Magistrates Court – is the ACAT an appropriate forum to decide the matter? – degree of connection with the ACT – discretion of a court to decline to exercise its jurisdiction – the tests of “clearly inappropriate forum” and “clearly more appropriate forum” -
List of legislation: ACT Civil and Administrative Tribunal Act 2008, s. 22
Magistrates Court Act 1930, s.262
List of cases: Diamond v Bank of London and Montreal Ltd [1979] 1QB 333
Maritime Insurance Co Ltd v Geelong Harbour Trust
Commissioners (1908) CLR 194
Oceanic Sun Line Special Shipping Co Inc v Fay(1988) 165 CLR 197
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460
The Abidin Daver [1984] AC398
Voth v Manildra Flour Mills Pty Ltd (1990)171 CLR 538
Tribunal: Mr A. Morris, Registrar
Date of Orders: 28 September 2011
Date of Reasons for Decision: 28 September 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )
XD 719 of 2011
BETWEEN:
CHARLES JOHN ARAMAYO
First Applicant
AND:
MICHAEL JOSEPH ANTHONY COURT
Second Applicant
AND:
KERRILYN THERESE EVANS
Third Applicant
DEBORAH VARDY
First Respondent
FORSTER NETWORKING PTY LTD
T/AS FORSTER/TUNCURRY
PROFESSIONALS
SecondRespondent
TRIBUNAL:Mr A. Morris, Registrar
DATE:28 September 2011
ORDER
Permanent stay on proceedings in this jurisdiction.
………………………………..
Mr A. Morris
Registrar
REASONS FOR DECISION
Parties should note that these reasons for decision given in this matter are produced as an aid to the thinking that produced them. ACAT does not as a rule provide written reasons in interlocutory matters, and nobody should cite this decision as precedent for seeking such in future matters. However, the complexity of the matter, and the physical absence of two of the parties at the hearing suggests it is appropriate in this matter to write a decision.
There is no formal application before ACAT for what I am here determining. For the record, I note that Registrar Gralton wrote on 10thAugust 2011 in a letter to all parties that he was treating the first respondent’s letter of 20th July 2011 as an application to strike out the claim for want of jurisdiction. It is on the basis of this letter that this interlocutory matter is proceeding.
I should note that in determining this issue, I am not proposing to treat the interim application as a strike-out application, but rather as one for a permanent stay. In that way, I am intending to preserve the position of the parties in respect of the substance of the application.
This matter arises from a dispute concerning a contract of sale collateral to one for a unit situated in Forster-Tuncurry, New South Wales, and concerning aspects relating to the sale and condition of associated chattels, situated within the property sold under the first contract.
The applicants consist of three parties, one of whom is resident in New South Wales, and the other two who are resident in the ACT.
It is pleaded by the applicants that the seller’s agent (also in New South Wales) misrepresented (inter alia) the quality, value and quantity of the chattels, and that such misrepresentation(s) allegedly made in the course of trade or commerce caused the applicant purchasers to suffer loss or damage.
The applicants withheld money from the settlement and are now seeking to have judgment for $2,000.00 entered in their favour, this being the asserted difference between what they contracted for and what they received.
The respondents assert that the jurisdiction selected for these proceedings by the applicants (the ACT Civil and Administrative Tribunal, henceforth “ACAT”) is an inappropriate forum, given that the property in question – both real and chattels - is located in NSW, the seller, the seller’s solicitor and agent are located in NSW, the contract was commenced in NSW using a NSW contract and one of the purchasers lives in NSW.
It is the position of the second respondent, the real estate agent in the matter, that the cause of action arose in Forster, New South Wales, and that as a result “the jurisdiction of the ACT Tribunal is not invoked”.
The first respondent, who filed the principal submissions in this matter, argues that the ACAT is not the correct forum for the resolution of this dispute.
The applicants assert that ACAT is an allowable and a suitable forum in which to proceed.
All parties appeared in the Registrar’s motions list on 19th September 2011, the applicant’s solicitor in person, and the first and second respondents’ solicitors by telephone, and put their positions on this interlocutory issue. No parties were present in person. It was not a part of those submissions that the substantive issues be considered, and I do not do so.
The Applicants’ Position
All parties directed me to section 22 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) and Section 262 of the Magistrates Courts Act 1930 (the Magistrates Court Act). I set them out here for convenience.
22 Tribunal jurisdiction and powers of Magistrates Court
(1) The tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, part 4.2 (Civil jurisdiction).
(2) However, a rule may prescribe provisions of the Magistrates Court Act 1930, part 4.2 that do not apply in relation to the tribunal.
(ACT Civil and Administrative Tribunal Act 2008)
262 Cause of action arising, or defendant resident, outside ACT
The Magistrates Court has jurisdiction to hear and decide a proceeding
if—
(a) the defendant was resident in the ACT when the claim was served on the defendant, even though all of the cause of action in the proceeding arose outside the ACT; or
(b) both of the following apply, even though the defendant is not in the ACT:
(i) a material part of the cause of action in the proceeding arose in the ACT, even though part of the cause of action arose outside the ACT;
(ii)the claim is served on the defendant in Australia or an external territory.
(Magistrates Court Act 1930)
The substance of these is that ACAT in civil matters is vested with the same jurisdiction and powers as the ACT Magistrates Court. This in turn gives ACAT power to hear and decide proceedings which have other-jurisdictional relations, on certain conditions, the relevant one here being that a material part of the cause of action arose in the ACT.
It is common ground that the respondents were not in the ACT at the time of service of the claim – or indeed at any other time – but it is not argued that the provisions of s262(b)(ii) of the Magistrates Court Act are in issue.
Essentially, the applicants make two points. They are:
a.that it is the respondents’ onus to establish that ACAT lacks jurisdiction; and
b.that a material part of the contract occurred in the ACT, namely transmission to the seller’s agent by one of the two of the applicants of a facsimile setting out terms of purchase of the chattels. I infer from this that the applicants suggest that the terms of the chattel contract were received in the ACT from the agent, in material not before me, and acted upon in the ACT.
The Respondents’ Position
Notwithstanding that there are two respondents, their position in this matter was put to me as congruent with each other, and Mr Barraclough for the agency relied upon the statements of Mr McGookin for the seller.
Essentially, their position is that the whole matter is so deep in New South Wales jurisdiction that it is pointless to take it into another jurisdiction, and that the test of essence of materiality is not met.
But even if it were, i.e. that the ACAT found it did have jurisdiction, the respondents further assert that the ACAT should decline to assert that jurisdiction, as the ACT is not the appropriate forum in which to hear the matter.
Decision
It should be noted that the matter arises in respect of the sale of chattels agreement, and not the sale of real property. It is also the case of the applicants that this is a tortious claim, not a contract one.
In respect of whether there is an appropriate materiality of the matter to the ACT, I was directed to Voth v Manildra Flour Mills Pty Ltd (1990)171 CLR 538, at 568, where the Court said:
“If a statement is directed from one place to another where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was in substance made at the place to which it was directed…”
This was also said a good deal earlier by Lord Denning in Diamond v Bank of London and Montreal Ltd [1979] 1QB 333 at 345,
“It seems to me that in the case of fraudulent misrepresentation, when it is made by telephone or telex … the tort is committed at the place where the message is received…”
Notwithstanding such eminent authority, I think that the present situation can be distinguished in that in both Diamond and Voth the parties were on knowledge that the matters with which they were dealing at the time were indeed international matters. In the present instance, it is argued by the respondents that they had neither knowledge nor reason to suspect that they should even consider that the applicants were not in New South Wales.
Mr McGookin stated that at no time was the respondents made aware that the applicants (or some of them) lived in the ACT.
I think that this makes a difference to the situation. It seems to me that when parties enter into a contract to buy NSW property, and chattels which every party knows to be in NSW at the material times, it seems counterintuitive to me to allege that because a couple of members of the transaction resided in the ACT and sent a fax confirming terms of agreement, which must have previously been negotiated with the respondents, it is a stretch to say that the existence of such a document founds ACT materiality to satisfy s262(b)(1).
In short, I am not sufficiently convinced that in this situation the degree of connection with the ACT is indeed a material one. But I do not choose to make that as a finding, given the next part of this decision.
I now turn to consider the second part of Mr McGookin’s submissions. This is that even though the ACAT might have jurisdiction, it should decline to exercise it. It is here that Voth really applies.
It is neither my intention nor wish to provide a full and detailed exposition of the law relating to “inappropriate”,” clearly inappropriate” or “clearly more appropriate” fora tests. However, in order to justify my reasoning, some short excursus into these areas is necessary.
Basically, even though a court may have jurisdiction over a matter, it may decline to exercise that jurisdiction, according to certain principles. These are:
a.Forum non conveniens – where a court may determine that it is not the most suitable place to run a matter, having regard to the degree of connexion between the matter and the forum;
b.Lis alibi pendens – where a matter is on foot in another jurisdiction, in what are effectively parallel proceedings; or
c.Where the parties have agreed or been bound to the principle that a particular law or set of laws applies to a dispute.
Of these, it is clear that that this stage only the first of these principles is relevant here.
Initially, in Common Law jurisdictions (which differ markedly from the approach adopted in Civil Law jurisdictions), the traditional view was that a proceedings that had been regularly commenced in a particular forum would not be stayed unless its continuation would be “vexatious or oppressive” to the defendant; and courts would not lightly come to that conclusion (Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioners (1908) CLR 194) It was the Scottish courts that appear to have mitigated this doctrine to what we now have, by moderating the meaning of the term “vexatious or oppressive”.
In 1986, what has been described as “The Spiliada Revolution” occurred, in the landmark case of Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. In this UK case, the House of Lords discarded the previous principles applying to forum, and held that a defendant seeking a stay had to show not just that England is not the most appropriate forum for a matter, but that there was a clearly more appropriate forum that the English one in which to run the case.
Lord Goff of Chieveley – with whom the rest of the court concurred – in Spiliada described the “natural forum” as being that with which the action had the most real and substantial connection”, and identified the factors that supported this as being convenience, expense, availability of witnesses, the law governing the transaction, and the place where the parties routinely carry on business. ([1987] AC 460 at 477-8, partly paraphrased).
He went on to say “In the event that there is no other available forum which is clearly more appropriate for the trial of the action, the court will ordinarily refuse a stay. If, however, there is some other available forum which prima facie is clearly more appropriate to the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which of justice requires that a stay should not be granted.”
This approach was first adopted in Australia in the matter of Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197. This matter, which involved a choice between the jurisdictions of Greece and New South Wales for a matter, held that proceedings should not be stayed on the basis of forum non conveniens, but the reasons that each judge on the bench employed to get to that point made extraction of a single clear principle somewhat unsatisfactory.
The issue however soon arose again, and was decided much more clearly and comprehensively, in the previously cited Voth v Manildra Flour Mills Pty Ltd. The clear outcome of Voth was a view that a court may in its discretion decline to exercise jurisdiction if it is a clearly inappropriate forum for the trial of the action.
In reaching their decision, the High Court made short work of Maritime Insurance, stating that although it had been the law in Australia, being some 82 years old, it might usefully be reconsidered.
The Court distinguished between the “clearly inappropriate forum” and the “clearly more appropriate forum” tests noting that the latter did not necessarily produce acceptable results. It had noted that the key to this was what was an analysis of what was oppressive to the plaintiff.
There is much to recommend the more appropriate forum test. Intuitively it seems right. But – and this is particularly relevant to this matter – it is difficult to assess all the potential factors which may be relevant to the question of what actually IS the most appropriate forum, particularly at the interlocutory stage of proceedings.
The complexity of modern cross-border transactions is such that there is often more than one forum that would satisfy the most appropriate forum test. The “clearly inappropriate forum” test is in most cases likely to lead to the same result as the “clearly appropriate forum” test.
But, and I quote Voth at page 558;
“... the question ... is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in a selected forum rather than on the need to make a comparative judgement between two forums. ... The important point is that in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum.”
The outcome then is that Australian law now accepts the “clearly inappropriate forum” test for determining the question of where a matter should be heard.
Applying this law to the present facts, I take the view that given that the vast majority of the matter occurred in New South Wales, the chattels and witnesses in any future airing of the case are all in New South Wales, and perhaps most tellingly that the law of New South Wales and access to justice in that State is not something that should weigh on the conscience of the ACAT as being unattainable to a litigant there. Not for the ACAT “judicial chauvinism”, but rather the “judicial comity” of Lord Diplock (The Abidin Daver [1984] AC398 at 411).
Whilst the ACAT may not be barred from determination of the matter, the ACAT is a “clearly inappropriate forum” for the final determination of the matter. Or to put it in terms of Voth, the ACAT in this matter declines to exercise its discretion as to jurisdiction as it considers that the ACT is a clearly inappropriate forum for the trial of the action.
Accordingly, I decline to accept that this matter should proceed in the Australian Capital Territory, and I order a permanent stay on proceedings in this jurisdiction.
………………………………..
Mr A. Morris
Registrar
2
0