Calister v Karadimas
[2010] TASSC 33
•6 July 2010
[2010] TASSC 33
COURT: SUPREME COURT OF TASMANIA
CITATION: Calister v Karadimas [2010] TASSC 33
PARTIES: CALISTER, Duncan
v
KARADIMAS, Nick
and AAS-AUSTRALIAN AUTO SALVAGE PTY LTD (ACN 091 307 390) trading as ABW AUSTRALIAN BODY WORKS
FILE NO/S: 793/2009
DELIVERED ON: 6 July 2010
DELIVERED AT: Hobart
HEARING DATE: 20 May 2010
JUDGMENT OF: Tennent J
CATCHWORDS:
Procedure – Courts and judges generally – Courts – Concurrent jurisdiction of different courts – Transfer of proceedings under cross-vesting legislation – Where appropriate and in the interests of justice – Generally – Factors relevant to the exercise of the discretion.
Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas), s5(2)(b)(iii).
Benson v Suncorp Metway Insurance Ltd [2000] TASSC 78; Bankinvest AG v Seabrook (1988) 14 NSWLR 711, applied.
Aust Dig Procedure [26]
REPRESENTATION:
Counsel:
Applicant: S Wright
Respondent: P Darmos
Solicitors:
Applicant: Stephen G Wright
Respondent: Kiatos & Co
Judgment Number: [2010] TASSC 33
Number of paragraphs: 14
Serial No 33/2010
File No 793/2009
DUNCAN CALLISTER v NICK KARADIMAS, AAS-AUSTRALIAN AUTO SALVAGE PTY LTD (ACN 091 307 390) trading as ABW AUSTRALIAN BODY WORKS
REASONS FOR JUDGMENT TENNENT J
6 July 2010
On 28 August 2009, the plaintiff commenced proceedings in this Court against the defendants. The plaintiff lives in Tasmania. The first-named defendant resides and carries on his business in Victoria. This is an application by the first-named defendant pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas) ("the Act"), s5(2)(b)(iii), for an order transferring the proceedings to the Supreme Court of Victoria. The solicitors are the same for both defendants and nothing appears to turn on the inaction of the second-named defendant. In these reasons, the first-named defendant will be described as the defendant.
The Act, s5(2), provides as follows:
"(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 –
…
(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."
The Court must therefore be satisfied as to whether it is in the interests of justice that the proceedings be transferred. If it is so satisfied, the order sought should be made. There is no onus attaching to either party in respect of such an application. See Bankinvest AG v Seabrook (1988) 14 NSWLR 711.
The plaintiff is the owner of a 1973 Ford XB GS sedan. In about the middle of 2006, he began making enquiries with motor vehicle body repair shops about having restoration work done on the car. He obtained a quote from a business in Devonport but that business was unable to start the work for some time. In the circumstances, the plaintiff made other enquiries. He was given the name of the defendant, and contacted him. A discussion took place between the parties. There is a dispute between them as to precisely what was agreed at the time. However, as a consequence, the plaintiff delivered his car to the defendant's business premises in Victoria. There were further discussions between the parties at that point and there is a dispute as to what was agreed. However, work began on the car in the form of "bead blasting". I infer that process results in the surface of the car being taken back to bare metal.
The parties met again at the defendant's place of business after that process was completed. There is a dispute as to what was discussed and agreed. Nevertheless, monies were paid by the plaintiff to the defendant and the car remained with the defendant for further work to be done. At some stage after that, the defendant rendered invoices to the plaintiff. The plaintiff inspected the car further in about May 2009 and asserted that no restoration work had been done. He also asserted that the car was then deemed unsuitable for restoration. The arrangement between the parties broke down. I infer the vehicle was taken back to Tasmania.
The plaintiff's claim is for $50,000. That is made up of the value of the car when delivered to the defendant, which the plaintiff says was $20,000, recovery of monies paid to the defendant, and the cost of delivery of the car to Victoria and its retrieval. The issue identified by both parties as central to the dispute between them is the state of the car when it was first delivered to the defendant in Victoria.
To that end, both parties identified the evidence upon which they each sought to rely. For the plaintiff, he said that he was an automotive engineer and he had seven other witnesses who viewed the condition of the car prior to its being transported to Victoria. He identified them as follows:
(a)a Mr Harris from Harris Bodyworks. The plaintiff said he took the car to them to be checked to see what needed to be done by way of restoration. They had the car for about half an hour. At the time, the car was registered and insured and the plaintiff drove it to the bodyworks. They went over the bodywork and had a cursory look underneath. The car was not put up on a hoist. Mr Harris identified some rust.
(b)Mr Harris's son was the second of three people who looked at the car that day.
(c)a third unnamed person, also an employee of Harris Bodyworks, looked at the car with Mr Harris and his son. The plaintiff said none of the three identified any obvious issue with the car. He said there was nothing different from any other 40 year old car.
(d)the other four unnamed witnesses were four co-workers of the plaintiff who the plaintiff said each knew the car extremely well over 20 years. He said they had seen what the car looked like after it came back from Victoria and could not believe it was the same car that went. They will be able to say what it was like before. They had seen it on a hoist.
For the defendant, he identified a number of witnesses he proposed to call, all of whom were in Victoria, who had worked on, provided a quote in relation to, or inspected the car. These were:
(a) Clinton Hansen, a body mechanic.
(b) Martin Scully from Crowcams Pty Ltd, an engine builder.
(c) George Karadimas, a panel beater.
(d) Steve Karadimas, a body builder and painter.
(e) Tony Carpaci, body repairs, fabricator, welder and former insurance assessor with AAMI.
(f) M & D Motors, Mario Gionola, motor trimmers.
(g) Belki Blasting Pty Ltd, Wayne Belki, sandblasting of body shell.
(h) John Ciocca, 2 Pac Paints, the Painting Professionals.
(i) Grant Murray, general assistance/dismantling.
(j) Nick Tamiakis, Production manager, RSP Australia, rust replacement panels.
(k) Barnes and Cooper, loss assessors.
The defendant also identified four witnesses who he said were likely to be witnesses for the plaintiff, all of whom were in Victoria. While the plaintiff did not mention these witnesses, he did not challenge the affidavit evidence of the defendant as to their possible involvement.
There is no real dispute between the parties that this Court has jurisdiction to deal with this dispute. However, the defendant raised from the day he filed his defence that Victoria was the more appropriate venue for it. The defendant submits that:
- the contract was made in Victoria,
- any work done as a result of whatever it was the parties agreed, was done in Victoria,
- there are a significant number of witnesses to be called for the defendant, all of whom are in Victoria. The costs associated with having them travel to Tasmania to give evidence would be high and out of proportion to the value of the claim.
The plaintiff submits that:
- the contract was made in Tasmania,
- the plaintiff and the car, the subject of the dispute, came from and are now based in Tasmania,
- the plaintiff also has a number of witnesses from Tasmania to be called.
The remarks of Underwood J (as he then was) in Benson v Suncorp Metway Insurance Ltd [2000] TASSC 78, at pars[14] – [16], are apposite to this matter. He said:
"14 Neither party carries an onus of proof on this application. See McEntee v Connor (supra); Bankinvest AG v Seabrook (1988) 14 NSWLR 711; Anagnostis & Anor v Davies Brothers Ltd (1989) 99 FLR 196; Drive–In Nominees Pty Ltd & Ors v Farrow Mortgage Services Pty Ltd A19/1993. The only question is whether it is in the interests of justice to transfer the proceedings to Queensland.
15 The expression 'interests of justice' has a wide meaning. In Trade Practices Commission v Collings Construction Co Pty Ltd & Ors (1995) 130 ALR 115, Wilcox J said, at 125:
'The meaning of the phrase "the interests of justice" has been considered in a number of reported cases. In Bankinvest AG v Seabrook (1988) 14 NSWLR 711 the New South Wales Court of Appeal refused to apply forum non conveniens principles to the phrase and held, in the words of Street CJ at 714, that the phrase required the court to make a "management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute". In Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394 I expressed the opinion that the phrase ought to be read widely so as to include "adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date".
Rogers J of the New South Wales Supreme Court, took a similar approach in Seymour–Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648 at 662. He described the task of the court, in determining whether or not it is "in the interests of justice" to transfer a matter to another court, as "a balancing exercise to determine the appropriate court." He went on:
" ... the task that falls to the Court, bearing in mind the undertaking offered in each action by the defendant, is to determine the balance of convenience in the way that objective was explained by Toohey J in Crouch v Commissioner for Railways (Qld) (1989) 63 ALJR 416 at 418–419; 85 ALR 347 at 350–351. As his Honour concluded (at 419; 351) where there is no difference in the applicable law: 'The aim is, I think, to select the court which, in all the circumstances, will facilitate the course of litigation."'
16 It has also been held that comparative cost is a matter to take into consideration when considering whether a transfer is in the interests of justice. See Arrowcrest Group Pty Ltd & Anor v Advertiser News Weekend Publishing Co Pty Ltd (1993) 113 FLR 57 at 62; Baffsky v John Fairfax & Sons Ltd, unreported, Supreme Court ACT, Higgins J, 20 September 1990."
As to the costs associated with witnesses, both counsel submitted witnesses could give evidence by video-link. That was a matter Underwood J mentioned in Benson's case (supra). The use of video-links to enable witnesses to give evidence from remote locations is far more prevalent now than it was when Benson's case was decided.
However, having regard to all the factors canvassed by the parties, I am of the view that it would be in the interests of justice that these proceedings be transferred to the Supreme Court of Victoria. My reasons for forming that view are:
- the plaintiff gave almost no evidence about the precise nature of the evidence to be given by the seven witnesses he proposed to call who lived in Tasmania. Five of the seven were not even named. In any event, it is unlikely, given the general nature of their involvement with the car the plaintiff identified, that any more than one from each of Harris Bodyworks and the plaintiff's workplace would actually be needed.
- None of the witnesses identified by the plaintiff had, according to his evidence, actually done any work on the car.
- The witnesses from Harris Bodyworks had a relatively brief look at the bodywork of the car and did not put it up on a hoist.
- While it is not completely clear from the material before me, it appears that most of the discussions which gave rise to whatever the agreement was between the parties occurred in Victoria.
- The car was taken to Victoria by the plaintiff for the purpose of having work done on it by a Victorian tradesmen, and all the work the subject of the dispute was done in Victoria.
- Witnesses as identified by the defendant who actually worked on the car would be in a position to give apparently more relevant evidence than some of those identified by the plaintiff.. All of those witnesses are in Victoria.
- The defendant's application is that this matter be transferred to the Supreme Court of Victoria. That application is made on the basis that, if the defendant is successful, he will immediately thereafter move to have the matter transferred to the Magistrates Court of Victoria. The costs associated with proceedings in the lower court, I accept, even though I have had no direct evidence about this, would be lower than those in a superior court. The Magistrates Court in Victoria has jurisdiction to deal with a claim involving $50,000, whereas the Magistrates Court in Tasmania does not.
- While this application has taken some considerable time to actually be brought before the Court for hearing, it was flagged in the defendant's defence, an application to transfer, albeit badly worded, was made last November, and there is no suggestion the plaintiff has suffered any prejudice as a consequence of any delay.
The order of the Court is that these proceedings be transferred to the Supreme Court of Victoria.
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