Basan v Watts McCRAY (A Firm)
[2016] WASC 321
•6 OCTOBER 2016
BASAN -v- WATTS McCRAY (A FIRM) [2016] WASC 321
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 321 | |
| Case No: | CIV:2174/2015 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 6/10/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Action transferred to ACT | ||
| B | |||
| PDF Version |
| Parties: | SUSAN BASAN WATTS McCRAY (A FIRM) DOBINSON DAVEY CLIFFORD SIMPSON PTY LTD (t/as DOBINSON DAVEY SIMPSON FAMILY LAW SPECIALISTS) MEYER VANDENBERG (A FIRM) PGS SUPERANNUATION CONSULTING PTY LTD |
Catchwords: | Choice of forum Transfer application Interests of justice Cross-vesting legislation Turns on own facts |
Legislation: | Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) |
Case References: | Central Queensland Development Corp Pty Ltd (Formerly Bluechip Development Corp (Gladstone) Pty Ltd) v BMT & Assoc Pty Ltd [2015] WASC 195 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WATTS McCRAY (A FIRM)
First defendant
DOBINSON DAVEY CLIFFORD SIMPSON PTY LTD (t/as DOBINSON DAVEY SIMPSON FAMILY LAW SPECIALISTS)
Second defendant
MEYER VANDENBERG (A FIRM)
Third defendant
PGS SUPERANNUATION CONSULTING PTY LTD
Fourth defendant
Catchwords:
Choice of forum - Transfer application - Interests of justice - Cross-vesting legislation - Turns on own facts
Legislation:
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)
Result:
Action transferred to ACT
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First defendant : No appearance
Second defendant : No appearance
Third defendant : No appearance
Fourth defendant : No appearance
Solicitors:
Plaintiff : Slater & Gordon Lawyers
First defendant : No appearance
Second defendant : Boettcher Law
Third defendant : No appearance
Fourth defendant : No appearance
Case(s) referred to in judgment(s):
Central Queensland Development Corp Pty Ltd (Formerly Bluechip Development Corp (Gladstone) Pty Ltd) v BMT & Assoc Pty Ltd [2015] WASC 195
1 KENNETH MARTIN J: I am dealing with the application of the second defendant by notice of motion filed 4 August 2016, seeking that the plaintiff's action be transferred from this court to the Supreme Court of the Australian Capital Territory, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) (Cross-vesting Act).
2 The plaintiff's proceedings were issued in this court under her writ of summons of 28 July 2015. The plaintiff would appear to be a resident of Western Australia, but the defendants to her action are all eastern seaboard law firms. The subject of the plaintiff's grievances raise damages issues associated with professional negligence allegations predicated upon asserted contractual, tortious and fiduciary duties owed as legal practitioners whilst representing the plaintiff in Family Court proceedings against her husband in relation to financial and children's matters in the Federal Magistrates Court of Australia, in the period from around July 2009 through to December 2010.
3 Although the first defendant firm has not filed a memorandum of appearance in this court, my associate has received communications from the ACT legal practice, Ken Cush & Associates, indicating that the first defendant consents to the orders sought on the notice of motion of the first defendant and will effectively participate on the first defendant's behalf once the proceedings are transferred to the ACT. The first defendant has indicated that it consents (email of 27 September 2016) to the orders sought for transfer on the first defendant's notice of motion and to various potential cost dispositions, including that costs be reserved.
4 The proceedings in Western Australia are not far advanced. On 6 September 2016, the plaintiff's action against the third defendant was dismissed, on the basis of consent orders filed pursuant to O 43 r 16 of the Rules of the Supreme Court 1971 (WA). A similar order dismissing the plaintiff's action against the fourth defendant was issued consensually out of this court on 23 September 2016. Hence, the remaining defendants to the action are just the first and second defendants, both of which are ACT law firms (or have offices there).
5 The second defendant seeks the transfer of the action to the Supreme Court of the Australian Capital Territory under the Cross-vesting Act upon the basis that it is in the interests of justice that the action, as it now presents, be determined within that forum.
6 The application of the second defendant to transfer the action to the ACT Supreme Court is now supported by the plaintiff and, as I mentioned, is also supported by the first defendant. Notwithstanding that ostensible accord as to a transfer, it is necessary that I be independently satisfied that the pre-requisite requirements of s 5(2)(b)(iii) of the Cross-vesting Act are met and that transfer is appropriate.
Materials
7 The evidentiary materials which have been provided, supporting the application of the second defendant, are essentially an affidavit of Gary Weetman filed in this court on 4 August 2016 and, as well, the second defendant's written submissions of 23 September 2016. Having considered those materials, I am satisfied that it is appropriate that orders in terms of the second defendant's notice of motion, transferring this action to the ACT Supreme Court, do meet the interests of justice threshold of s 5(2)(b)(iii) and are appropriate.
8 Shortly stated, it presents, by reference to the underlying nature of the disputes, that the first and second defendants are firms of legal practitioners practising in the ACT and were engaged by the plaintiff under retainers that were entered into in the ACT. The legal services which were provided by the first and second defendants, and by retained barristers, would all appear to have been provided to the plaintiff in the ACT.
9 Although there have been no pleadings yet exchanged, the plaintiff's array of grievances as foreshadowed against the second defendant can be found under annexure A to Mr Weetman's affidavit, in respect of a foreshadowed claim for damages, approximating $778,000. These claims give rise to looming forensic issues at a trial, including:
(a) the proper construction of retainers;
(b) the precise nature and extent of the plaintiff's instructions to engage legal representatives;
(c) the advice provided to the plaintiff;
(d) proportionate liability issues, vis-à-vis barristers retained by first and second defendants to act on behalf of the plaintiff;
(e) advocate's immunity issues; and
(f) issues including causation, loss and damage including considerations relevant to the value of superannuation holding.
Determination
10 Applications of this kind require a bespoken assessment of their presenting underlying facts and issues. As to legal principles, I assembled some case authorities concerning the 'interests of justice' transfer ground by reference to s 5(2)(b)(iii), in my reasons for decision in Central Queensland Development Corp Pty Ltd (Formerly Bluechip Development Corp (Gladstone) Pty Ltd) v BMT & Assoc Pty Ltd [2015] WASC 195 [10] - [14].
11 Applying the principles and considerations extracted from those case authorities, I am satisfied that the ACT Supreme Court is the natural and appropriate forum for determining the underlying disputes (now truncated to the plaintiff's grievances against only two of the original four named defendants to her writ) rather than this court.
12 In short, apart from the current place of residence of the plaintiff, which presently is in Western Australia, there presents as being no other ties or linkage to Western Australia discernible in the underlying disputation.
13 The following factors found assembled in the second defendant's written submissions bear affirmatively upon my determination, namely:
(a) the remaining defendants' principal places of business and the second defendant's registered office as being in the ACT;
(b) some eleven potential witnesses for the litigation all residing in the ACT, save only for the plaintiff and one other barrister witness who may be called (and who resides in Sydney, New South Wales);
(c) all unfolding events giving rise to the plaintiff's alleged causes of action against the residual defendants appear to have taken place in the ACT;
(d) the substantive legislation applicable to and surrounding a determination of the plaintiff's claims appears to be laws of the ACT;
(e) the residual two defendants being represented by legal practitioners who are based in the ACT and who, further, are likely to retain barristers practicing at the Canberra or Sydney bars to defend the plaintiff's action;
(f) were a trial to be conducted in Perth, it is demonstrable that there would be greater expense incurred for the ACT-based defendants, both in travelling and from a logistical perspective; and
(g) the plaintiff who started her action in Western Australia now raises no substantive opposition to her action (as now truncated to two defendants) being transferred to the ACT.
14 In such underlying circumstances, I am satisfied the interests of justice favour a transfer and a determination of the action in the Supreme Court of the ACT. That court presents as the natural and appropriate forum for the determination of this action.
15 Accordingly, I shall now issue orders contemporaneously with my publication of these reasons in the following terms:
(1) the proceedings are hereby transferred to the Supreme Court of the Australian Capital Territory pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA);
(2) the costs of and incidental to this application are reserved to that court.
0
1
1