Australian Rail Track Corp v Twentieth Super Pace Nominees No. Scciv-03-319

[2004] SASC 78

AUSTRALIAN RAIL TRACK CORPORATION LTD
v
TWENTIETH SUPER PACE NOMINEES PTY LTD TRADING AS SPECIALISED CONTAINER TRANSPORT
[2004] SASC 78

Civil

1. DEBELLE J.  This is an application to stay this action or, in the alternative, to transfer it to the Supreme Court of Victoria.

2. The plaintiff Australian Rail Track Corporation (“Rail Track”) leases the railway track from Perth to Melbourne.  Rail Track has entered into an agreement with the defendant Twentieth Super Pace Nominees Pty Ltd which trades under the style or business name of Specialised Container Transport (“SCT”) whereby Rail Track grants SCT access to the rail track.  The agreement is called “the Track Access Agreement”.  SCT operates a freight business and in the course of that business operates trains pursuant to the Track Access Agreement on the railway network leased by Rail Track.  On 25 January 2002 a freight train operated by SCT and travelling from Perth to Melbourne derailed near Kiata in Victoria on the Salisbury to Dimboola section of the track.  The derailment caused damage to the railway track and to rolling stock.

3. Proceedings have been issued in both this court and the Supreme Court of Victoria respectively by Rail Track and by SCT.  On 12 February 2003 SCT commenced an action in the Supreme Court of Victoria claiming $1.4 million for damage to rolling stock and other losses.  On 6 March 2003 Rail Track commenced an action in this Court claiming damages for the cost of repairs to the track.  On 16 March 2003 SCT filed a defence in this Court.  The parties exchanged lists of documents in June 2003.

4. The action instituted by Rail Track is but one of seven actions instituted in this Court or in the District Court of South Australia by Rail Track.  In all of those actions SCT is the defendant.  Four of the actions including this action were instituted in this Court.  The remaining three were instituted in the District Court but were transferred to this Court to enable the orderly management of all of the actions.   In those actions Rail Track claims damages against SCT for damage to its tracks caused by derailments.  The actions are being managed as a group in this Court.  I am the judge managing the actions.  Four of these actions have been managed as a group since October 2002 at first by a Master and later by me.  Other actions have been added when they have been instituted.  I had commenced the management of this action without any opposition from SCT.

5. Two of the actions in this Court were instituted in 2001.  Two actions instituted in the District Court were commenced in 2002 and one in 2001.  This action commenced in this Court on 6 March 2003.  The fourth action in this Court commenced after that date.

6. Rail Track has its head office in  Adelaide and its solicitors, Wallmans, are in Adelaide.  Wallmans are acting for Rail Track in all seven actions.  The solicitors handling all of the actions for SCT are William R. Wilson and Associates (“Wilsons”) of Moorooka in Queensland.  Wilsons instructed two firms to act for them in Adelaide in the actions I have mentioned.  They are Grope Hamilton & Budini and Phillips Fox.  In 2002 Phillips Fox was instructed to act in respect of the claim arising out of the derailment at Kiata.  As will be seen, in early 2003, Wilsons instructed Norton Smith, solicitors in Melbourne to act in respect of the Kiata derailment.

7. On 19 March 2003 Rail Track responded to the fact that two actions have been instituted in respect of the one derailment at Kiata by making an application to the Supreme Court of Victoria for an order that the action instituted by SCT in that Court be transferred to this Court to be heard with this action.  Rail Track’s application was heard by Byrne J who on 11 April 2003 published reasons and dismissed the application.  The action in the Supreme Court of Victoria was then listed in the Major Torts List in that Court and orders have been made for the management of the action.  The action continues to be prosecuted in that Court.

8. I set out the facts on which Rail Track grounded its application to transfer the action in Victoria to this Court.

   (1) In the Track Access Agreement the parties have agreed that the law of the agreement is the law of South Australia and that all proceedings arising from the agreement should be submitted to the jurisdiction of this Court.

   (2)A  Judge of this Court was managing six actions between Rail Track and SCT at the time Byrne J  heard the application.

   (3)The issues are similar in each action.  There are of course differences in the facts of each individual action but the relevant issues are the same.

   (4)Wilsons, the solicitors for SCT in Queensland, are conducting litigation in each of the actions through their agents respectively in Adelaide and in Melbourne.  There is no prejudice, therefore, to SCT in having solicitors in Adelaide acting in this action instead of solicitors in Melbourne.  By contrast Rail Track whose office is in Adelaide also has solicitors in Adelaide, who are acting for them in all of the actions.

   (5)SCT asserts that it will be calling thirteen witnesses who reside in Melbourne.  Rail Track will be calling at least six witnesses who reside in Adelaide. The convenience of witnesses was a fact which weighed heavily with Byrne J.  However, in these days of quick and efficient transport and communication,  particularly  the  ability  to  communicate  by  facsimile  or e- mail, arguments of inconvenience have less force than hitherto.  The convenience of witnesses is not a factor which appears to outweigh the other factors to which I have referred.  It does not outweigh the fact that all of the actions between these two parties were being managed in one court and it would have assisted the orderly prosecution of these actions if one Court continued to manage all of them.

9. Rail Track submitted to Byrne J that SCT was “stealing a march” on Rail Track by commencing proceedings in Victoria.  Rail Track referred to the history of the Kiata action.  As already mentioned, Phillips Fox were the solicitors who had been instructed in relation to the Kiata claim.  On 5 April 2002 acting pursuant to Rule 6A.02 of the Rules of this Court, Rail Track had given notice of its claim to SCT.  Negotiations took place between Wallmans and Phillips Fox.  The negotiations did not succeed in resolving the issues between the parties.   There was a relatively constant exchange of correspondence between Wallmans and Phillips Fox through 2002 and until March 2003.  In the meantime, unbeknown to either Wallmans or to Phillips Fox, Wilsons instructed Norton White to commence the action in the Supreme Court of Victoria.  On 17 February 2003 Norton Smith served the proceedings on Rail Track.  It will have been noticed that, contrary to the usual practice,  the proceedings were served directly on Rail Track despite the fact that Wilsons (and presumably Norton White as their agent) knew that Wallmans were acting for Rail Track.   Wallmans immediately informed Phillips Fox that proceedings had been issued by Norton Smith out of the Supreme Court of Victoria and asked if Phillips Fox were still acting as solicitors for SCT.  By letter dated 19 February 2003, Phillips Fox expressed their surprise at the development but informed Wallmans that they had learned that SCT had been advised to initiate proceedings in Victoria.  There is no satisfactory explanation as to the change in solicitors for SCT in respect of the claim for the Kiata derailment nor for the institution of proceedings in the Supreme Court of Victoria other than it was counsel’s advice to do so.  About three weeks later Wallmans issued the action out of this Court.   Phillips Fox continued to act for SCT in South Australia until late June 2003.  They filed a defence.  In June they filed a list of documents.

10. There can be no suggestion of forum shopping on the part of Rail Track.  It had already issued actions against SCT out of this Court and out of the District Court and its solicitors in Adelaide had already given notice of claim to be issued out of this Court long before the action was commenced in Victoria.

11. On 17 June 2003, Wilsons wrote to Wallmans asking that Rail Track consent to an order that the action in this Court be stayed.  An exchange of letters followed.  On 31 July 2003 DMAW Lawyers, a firm of solicitors in Adelaide, wrote to Wallmans stating that DMAW were now acting as agents for Wilsons.  DMAW repeated the request that Rail Track consent to an order staying its action.  On Wallmans informing them that Rail Track refused to consent to a stay, DMAW issued this application.

12. Notwithstanding the compelling force of these facts, Byrne J held that SCT was not  stealing a march on Rail Track.  He added that in his view the action in this Court had been commenced to fortify the action by Rail Track to transfer the action from the Supreme Court of Victoria to this Court.

13. I do not know whether Byrne J was informed that, of the five other actions that were being managed in this Court, three had been commenced in 2001 and two in 2002 and that Wilsons had instructed solicitors in this State to act for SCT.

14. I have to decide whether the interests of justice require that this action remain in this Court.  I think that the interests of comity with a court of equivalent jurisdiction in another State require that I accept the reasons of Byrne J.  Given his Honour’s conclusion, I do not have to decide whether the change of solicitors was a tactical manoeuvre on the part of SCT or whether SCT was stealing a march on Rail Track and I do not have to decide why SCT did not agree to transfer the action from the Supreme Court of Victoria to this Court in response to Rail Track’s application.

15. It is wholly inappropriate and contrary to the interests of justice that the same issue should be litigated in two different courts in this country.  That will result in unnecessary expense to the parties and give rise to a risk of inconsistent decisions.

16. But for the order of Byrne J, an order might have been made that is more appropriate for the action in the Supreme Court of Victoria to have been transferred to this Court and to be heard together with this action.  However, given the existence of the order of Byrne J and in the interests of comity, it is inappropriate for this action to continue in this Court.

17. SCT has applied for a stay of this action.  I do not think such an order is appropriate as it may result in an issue in this action not being determined.  The better course is to transfer the action to the Supreme Court of Victoria.  The parties can then apply for an order that it be heard together with the action in that Court.

18. For these reasons I order that this action be transferred to the Supreme Court of Victoria.  I will hear the parties on the question of whether it should be a condition of the order that SCT pays the costs of Rail Track of this action up to 17 June 2003 when Wilsons requested a stay of the action.  I will hear the parties as to costs of this application.