BOC Limited v Ambulance Victoria

[2016] NSWSC 1166

Supreme Court

New South Wales

Medium Neutral Citation:	BOC Limited v Ambulance Victoria [2016] NSWSC 1166
Hearing dates:	19/08/2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Equity - Commercial List
Before:	McDougall J
Decision:	Proceedings cross-vested to Supreme Court of Victoria.
Catchwords:	PROCEDURE – application to cross-vest proceedings to Supreme Court of Victoria – whether it is in the interests of justice to cross-vest proceedings – whether Supreme Court of Victoria is the more appropriate or natural forum – where there are competing connecting factors – where balance of factors favours Supreme Court of Victoria – s 5(2)(b) Jurisdiction of Courts (Cross-vesting)act 1987 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Van der Sluys v Anaconda Nickel [2000] NSWSC 719
Category:	Procedural and other rulings
Parties:	BOC Limited (Plaintiff) Ambulance Victoria (Defendant)
Representation:	Counsel: R McGregor (Solicitor) (Plaintiff) V Thomas (Defendant)   Solicitors: HWL Ebsworth Lawyers (Plaintiff) Lander & Rogers Lawyers (Defendant)
File Number(s):	2015/375857

Judgment

1. HIS HONOUR: Between 2008 and 2012, the plaintiff supplied medical oxygen cylinders to the defendant. The plaintiff claims that some thousands of cylinders should have been returned, but that they have not been returned. In these proceedings, it seeks the return of the cylinders or damages.

2. The matter with which I am concerned today is the defendant's application to transfer the proceedings to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act1987 (NSW) (the Cross-vesting Act). The application is made pursuant to s 5(2)(b)(ii),(iii). I set out that subsection:

5   Transfer of proceedings

…

(2)    Where:

(a)    a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and

(b)    it appears to the first court that:

(i)    the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court,

(ii)     having regard to:

(A)    whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory,

(B)    the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C)    the interests of justice,

it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or

(iii)    it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.

3. The plaintiff is a company incorporated in this state. The defendant is a statutory corporation created under the laws of the State of Victoria. As the defendant’s name suggests, its primary function is to provide ambulance services (including emergency services) in Victoria.

4. It has not been suggested that the plaintiff’s invocation of the jurisdiction of this Court is irregular. Nor has it been suggested that the defendant is not amenable to the jurisdiction of this Court.

5. When the application for cross-vesting was made some months ago, the List Judge observed (on 18 March 2016) that the application appeared to be "evenly balanced" and that it could be relevant to know what evidence was actually to be called on the substantive issues, rather than what the parties said in their affidavits might be called. Experience suggests that forecasts of the likely number of witnesses, made for the purposes of applications under s 5(2) of the Cross-vesting Act, rarely (if at all) understate the likely number of witnesses to be called.

6. In the present case, the plaintiff has put on its evidence. That evidence comes from four witnesses. Two of those witnesses are resident in this State. Two are resident in the State of Victoria. The plaintiff's position is that to the extent there is inconvenience in bringing its witnesses from Victoria to this State, that is an inconvenience that it is prepared to bear. The defendant observes that of those four witnesses, the two who reside in this state give evidence as to, respectively, the computer records of the plaintiff (Ms Goyal) and the rent or compensation that might be due if the defendant is found to have retained the plaintiff's cylinders (Mr McGregor).

7. The defendant has not yet put on its evidence. The plaintiff suggested that it might be appropriate to defer a decision on the application until the evidence was complete. At first, that seemed to me to be appropriate. However, on reflection, I decided to deal with the application on its merits. One reason for that is that the Court is bound to assist the parties to achieve the just, quick and cheap resolution of the real issues in dispute. That command, imposed by s 56 of the Civil Procedure Act2005 (NSW), applies just as much to interlocutory applications as it does to the identification and disposition of the substantive issues in contested litigation. It seems to me that it would not be consistent with the just, quick and cheap resolution of the cross-vesting application for it to be stood over yet again, in circumstances where the parties have prepared to have it dealt with today.

8. That means of necessity that I do not know what witnesses the defendant is likely to call. However, what I do know is that of the range of likely witnesses identified, some seven in all, all are resident in the State of Victoria. One, Ms Pipka, has been identified as a key witness. She apparently managed the agreement between the defendant and the plaintiff. She dealt with Mr Panteli of the plaintiff, who is a witness to be called by the plaintiff and is one of its witnesses who resides in Victoria.

9. Of the other six witnesses or potential witnesses referred to in the defendant's affidavit, two have been referred to in the affidavit evidence on which the plaintiff proposes to rely at the hearing. There is therefore some basis for inferring that either or both of those two (Mr Miltenoff and Mr Aspinall) might be called.

10. The parties did not disagree as to the principles to be applied on a cross-vesting application. The Court's task is to determine whether it is in the interests of justice that the proceedings be decided in the Supreme Court of Victoria. Undertaking and performing that task requires the Court to perform a nuts and bolts management decision in an attempt to identify the more appropriate, or natural, forum for the litigation. The Court does not apply the clearly inappropriate forum test, which is relevant in connection with applications to stay on the ground of forum non conveniens.

11. That nuts and bolts management decision requires the Court to consider the connecting factors between the litigation and the Court in which the litigation has been brought, and the Court that is suggested to be the more natural forum.

12. One of the relevant factors is whether the parties have a choice of law clause in their contract. In this case they do. The parties identified the law of Victoria as the proper law of their contract.

13. In a case of this nature, the choice of law clause is not of dispositive significance. I say that because it has not been suggested that there is any peculiar feature of the statute law of Victoria that would be relevant in this case. The matter would appear to depend on the common law which, as the High Court has reminded us from time to time, is the common law of Australia.

14. The parties agreed by their contract to submit to the non-exclusive jurisdiction of the Courts of Victoria, for the resolution of disputes arising out of their agreement. Again, that is not determinative. Nonetheless, both by itself and in conjunction with the choice of law clause, it constitutes some recognition by the parties of the Supreme Court of Victoria's being the natural forum for the resolution of this dispute.

15. The other relevant factors that have been identified in the authorities include the place of the wrong, the place where corporate litigants carry on business, convenience to witnesses and to parties more generally, and the ability of each of the "competing" Courts to provide an efficient and economical speedy disposal of the real issues in dispute.

16. The last matter may be put to one side. If the matter were to be cross-vested to the Supreme Court of Victoria, it would be on condition that the plaintiff make application as quickly as possible to have the matter listed in the Commercial List of that Court so that it can be case-managed by a judge of that Court. There is no reason to think, so case-managed, there would be any disparity in the efficiency and economy of the disposition of the fundamental issues.

17. Although the plaintiff says that it is prepared to bear the cost of bringing its witnesses (who will be its substantive witnesses on the issues of fact, I think) to this State, that does not negate the significance of the fact that those two witnesses live in Victoria. The convenience of the witnesses themselves is a matter for consideration. Clearly, in my view, it would be more convenient for them to give evidence in their home State. The fact that they may be prepared to come to this State does not override that.

18. To the extent that the lex loci delicti is relevant (that is, the law of the place of the wrong, as opposed to the law selected by the parties as the proper law of their contract), it would appear to be the law of Victoria. In circumstances where, as I understand it, cylinders were delivered, and to be returned, in Victoria, the question of conversion (and detinue) would appear to arise for consideration by reference to Victoria as the place of the wrong.

19. So far as the place of business of the parties is concerned, I have dealt with that already. The plaintiff has its place of business in this state, the defendant in the State of Victoria. However, as is obvious, the plaintiff also carries on business in the State of Victoria. That is how it was able to deal with the defendant, and that is why its significant witnesses as to these dealings (Mr Panteli and Mr Sheild) are residents of Victoria.

20. The defendant relies on the location of documentary records. The evidence establishes that the plaintiff's records have been imaged, and are available electronically. However, the defendant's invoices and delivery dockets relating to its dealings with the plaintiff are archived in a facility off-site at Corio in the State of Victoria. The evidence does not go so far as to say whether those records have been imaged. Nor does it go so far as to say to what extent it would be an expensive and difficult task to do so. However, as a Judge sitting in a specialist Court, I can I think take into account on an application such as this my experience that in large scale commercial litigation, documents are routinely imaged for the purposes of providing whatever disclosure may be required.

21. I should note that Mr McGregor, for the plaintiff, submitted that the location of documents was in any event irrelevant. He relied on the decision of Hunter J in Van der Sluys v Anaconda Nickel [2000] NSWSC 719 at 6.

22. It is clear, reading what Hunter J said, that he did not enunciate (nor did he intend to enunciate) the general principle for which that decision was cited, namely that "the location of documents is generally irrelevant to cross vesting applications". Nor do I think that a judge of such vast experience as Hunter J could have said so. When one reads the paragraph in question, it is clear that his Honour was applying his experience to the description of the issues, to come to a conclusion that the relevant documents would not be "so voluminous as to make it impractical or inordinately expensive for relevant documents to go to wherever witnesses and legal representatives are located for the purpose of preparing for hearing". When the paragraph is read in context, it is plain that his Honour did in fact recognise that the location of documents might be relevant in particular cases. What he said was that it was not a relevant factor in the case before him.

23. As a back-up proposition, Mr McGregor submitted that the defendant had not shown how many documents there were, how difficult it would be to access them, whether they had been imaged, and, if they had not, how difficult it would be to do so. That is certainly correct, and I have commented on those matters already.

24. The matter remains one that in my view is closely balanced. Some factors, for example, the availability of case management and the locations of the parties, are essentially neutral. However, when one goes through the connecting factors as I have summarised them, the preponderance of those that are not neutral appears to me to favour the Supreme Court of Victoria as the natural forum. I refer in particular to the choice of law clause, the jurisdiction clause, and the fact that, as it appears to me at present, the majority of witnesses of fact whose evidence is likely to be contentious (as opposed to witnesses who give evidence as to computer records or as to calculations) reside, or are likely to reside, in the State of Victoria.

25. Ms Thomas, for the defendant, submitted in addition that I should take into account the defendant's position as an emergency services organisation. She said that to the extent that its employees were to be called, there was some significance in interfering with their work as little as possible, because they were involved in that work for the purpose of assisting the defendant to carry out its important - indeed, vital - statutory functions. There is I think some merit in that submission, although it is not of itself determinative.

26. Once it is concluded, as I have concluded, that the balancing of the relevant connecting factors favours the conclusion that the Supreme Court of Victoria is the natural forum for the resolution of this litigation, there remains no discretionary task but, rather, a mandatory obligation to cross-vest the proceedings to that Court. Having so concluded, it follows that I must make the order sought in prayer 1 of the defendant's Notice of Motion filed on 19 February 2016. However, I do so on condition that the defendant must apply expeditiously, and do all that is in its power to do, to have the proceedings entered into the equivalent, in the Supreme Court of Victoria, of the Commercial List of this Court.

27. The defendant is to submit an agreed minute of the orders to be made, and is to do so by 5pm today. I will hear the parties on costs.

[Counsel addressed.]

28. The defendant seeks its costs. The plaintiff submits that the matter remained finely balanced and thus that costs should be costs in the cause.

29. I think it is correct to say, as Ms Thomas submitted, that the notice of motion was a discrete "event" for the purposes of UCPR r 42.1. It was a matter that needed to be argued, because the parties were in contest. Although the plaintiff's position was not plainly untenable, it is proved to be one with which I disagreed. In those circumstances, and bearing in mind that the notice of motion is not one (such as, for example, a freezing order), the real justice of which can only be seen once the proceedings are finally decided, I take the view that costs should follow the event, and they may be included in the draft order.

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Decision last updated: 23 August 2016