Burwood Council v Visy Paper Pty Limited as trustee for the Southern Paper Converters Trust
[2020] NSWSC 286
•17 March 2020
Supreme Court
New South Wales
Medium Neutral Citation: Burwood Council v Visy Paper Pty Limited as trustee for the Southern Paper Converters Trust [2020] NSWSC 286 Hearing dates: 17 March 2020 Decision date: 17 March 2020 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: Application Refused
Catchwords: CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Application to transfer proceedings commenced in the Supreme Court to the District Court — Where declaratory relief sought — Where construction of contractual obligations in issue — Where relations between the Commonwealth government and a foreign government in issue Legislation Cited: Civil Procedure Act 2005 (NSW) s 146 Cases Cited: N/A Texts Cited: N/A Category: Procedural and other rulings Parties: Burwood Council (plaintiff)
Visy Paper Pty Limited as Trustee for the Southern Paper Converters Trust (defendant)Representation: Counsel:
Solicitors:
T Alexis SC (plaintiff)
N Bender (defendant)
Hones Lawyers (plaintiff)
Arnold Bloch Leibler (defendant)
File Number(s): 2019/385224
Judgment – ex tempore
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HIS HONOUR: An application is made to transfer these proceedings, commenced in this Court in December last year, to the District Court.
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The relevant provision of the Civil Procedure Act (s 146) clearly makes it abundantly plain that this is a matter for the discretion of this Court, such application having been made. There are a number of matters that may be taken into account and one matter that certainly, on the face of the legislation, must be taken into account.
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What must be taken into account is the relevant jurisdictional limits of the lower Court's jurisdiction. Mr Bender vigorously proposes that the jurisdictional limit here is far below that of the District Court and therefore that factor, along with some others, ought to be seen as a dominating factor in the circumstances.
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Equally though, it is plain that the proceedings involve an application for declaratory relief and I am by no means convinced that the relevant statutory provision in the District Court Act, which enables the District Court to grant declarations of a limited nature, is by any means a complete answer, first to the declaratory relief sought here but, secondly, to potentially any amended declaratory relief which may be sought as a result of some cross-claim being brought by the defendants in these proceedings.
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Next, this Court has a specialist division, namely the Equity Division, which spends much of its time construing contractual obligations between parties. The District Court has no such facility available to it. That is not to say that judges of that court, when from time to time, are called upon to deal with construction issues, do not deal with them both efficiently and competently. Nonetheless, a specialist division which is both attuned and geared to dealing with such disputes is more often than not a sufficient reason for hearing, commencing, and remaining in the Supreme Court.
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Further, there are factors here which may require the Court to interpret arrangements between the Commonwealth Government and the Government of the People's Republic of China. Again, it is in my view that that would be sufficient reason for hearing in this Court. Any relations between government, in my view, should be given the respect and the status that they deserve and it is appropriate, in my view, that if such arrangements are to be looked at, and here potentially they are, then it seems to me that the superior court in any State is the appropriate place for that to occur.
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If in fact it turns out at the end of the day that this is a relevant storm in a teacup, so to speak, either because of the delay or otherwise, the Court has ample jurisdiction and discretion in other forms of relief. Many years ago, there were judges of this Court in similar applications who made orders that any costs awarded to the successful party should be at a particular scale, namely, the District Court scale. I say nothing about that now but, clearly, the discretion which this Court has on costs that it may ultimately award is wide and would turn upon, ultimately, the complexity of the issues that are to be determined and are determined.
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On balance, therefore, in my view I should reject the application to transfer the proceedings to the District Court.
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Decision last updated: 24 March 2020
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