Australian Foods Co v Durham Pastoral Co
[2004] NSWSC 26
•5 February 2004
CITATION: Australian Foods Co v Durham Pastoral Co [2004] NSWSC 26 HEARING DATE(S): 5 February 2004 JUDGMENT DATE:
5 February 2004JURISDICTION:
Common Law DivisionJUDGMENT OF: Master Malpass DECISION: Application for leave to appeal fails. CATCHWORDS: Leave to appeal - dismissal for want of jurisdiction - stay because of inappropriate forum. LEGISLATION CITED: Local Courts (Civil Claims) Act 1970, s 17.
Judiciary Act 1903, s 78B (C'th).
Service and Execution of Process Act, 1992 s 20 (C'th).CASES CITED: N/A PARTIES :
Australian Foods Co Pty Ltd (Applicant)
v
Durham Pastoral Co Pty Ltd (Respondent)
Attorney General of New South Wales (Intervenor)
FILE NUMBER(S): SC 11603 of 2003 COUNSEL: Mr I Archibald (Applicant)
Mr J Clarke (Respondent)
K M Guilfoyle (Intervenor)SOLICITORS: Gavin Wells, Corporate Solicitor (Applicant)
Long Howland Houston (Respondent)
I V Knight - Crown Solicitor - (Intervenor)
LOWER COURTJURISDICTION: Local Court LOWER COURT FILE NUMBER(S): 93 of 2002 Local Court Gunnedah LOWER COURT
JUDICIAL OFFICER :T Murphy LCM
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMaster Malpass
5 February 2004
JUDGMENT11603 of 2003 Australian Foods Co Pty Ltd v Durham Pastoral Co Pty Ltd
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.
- for want of jurisdiction in the State of New South Wales.
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.
14 Following the giving of notices pursuant of s 78B of the Judiciary Act 1903, the Attorney General for New South Wales intervened in the proceedings and Miss Guilfoyle of counsel appeared on behalf of the Attorney General.
15 During the course of argument, it emerged that only one ground of appeal was being pressed (viz the ground that the learned Magistrate had failed to take into account the provisions of s 20). At that stage the Attorney General sought to withdraw and was excused. The Attorney General did not seek any order for costs.
16 In my view the application is hopeless. Although some inappropriate language may appear in the transcript, it is more than abundantly clear that the applicant was seeking a dismissal of the proceedings on the basis that the Local Court did not have jurisdiction to entertain the claim. The jurisdiction of the Local Court pursuant to s 17 of the Act was the only issue litigated.
17 This emerges with abundant clarity from the content of the Notice of Motion and the submissions made by the parties. Counsel for the applicant did not suggest that any submissions had been made on behalf of his client in relation to s 20. It seems to me that the mere reference to s 20 in the affidavit of Mr Shivnani (a director of the applicant) is of no significance. I should add that other material contained in that affidavit unambiguously identifies the basis of the objection to the matter being dealt with by the Local Court (that there was no jurisdiction in the New South Wales court).
18 A reliance on s 20 involves a different application (which is an application for the issue of an order staying the proceedings). Under the section, such an order may be made if the court is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
19 An application under that section would not require the court to look at the question of the jurisdiction of the Local Court in New South Wales. Rather, it would require the court to look at the question of whether or not a court of another State (in this case Western Australia) had jurisdiction to determine all questions in issue and then, if such jurisdiction was had the question of whether it was appropriate for that court to determine the matters.
20 The applicant did not seek a stay before the learned Magistrate. It did not litigate the two issues that arise under s 20. In my view, there was no error of the learned Magistrate. He addressed the nature of the application that was before him and determined the issue that was relevant to it.
21 The issues raised by s 20 were simply not relevant to the application. They were issues upon which the parties could have been expected to adduce other evidence.
22 Leaving aside those matters there is no need for leave in this case. Should it wish to do so, it remains open to the applicant to bring a further Notice of Motion before the Local Court seeking relief pursuant to s 20.
23 For the reasons given herein the application for leave fails.
Last Modified: 02/10/2004
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