Eastland Medical Systems Pty Ltd v Sims
[2013] WASC 11
•23 JANUARY 2013
EASTLAND MEDICAL SYSTEMS PTY LTD -v- SIMS [2013] WASC 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 11 | |
| 23/01/2013 | |||
| Case No: | CIV:2600/2012 | 2 NOVEMBER 2012 | |
| Coram: | KENNETH MARTIN J | 2/11/12 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Transfer application refused | ||
| B | |||
| PDF Version |
| Parties: | EASTLAND MEDICAL SYSTEMS PTY LTD DOUGLAS ARTHUR SIMS |
Catchwords: | Transfer from District Court Commercial case management with defamation action sought District Court action ready for trial Supreme Court action in early stages Jurisdictional problems with foreshadowed amended pleas and complaint in District Court Discretionary considerations |
Legislation: | District Court of Western Australia Act 1969 (WA), s 76 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DOUGLAS ARTHUR SIMS
Defendant
Catchwords:
Transfer from District Court - Commercial case management with defamation action sought - District Court action ready for trial - Supreme Court action in early stages - Jurisdictional problems with foreshadowed amended pleas and complaint in District Court - Discretionary considerations
Legislation:
District Court of Western Australia Act 1969 (WA), s 76
Result:
Transfer application refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr J R Ludlow
Defendant : Ms R Cosentino
Solicitors:
Plaintiff : Downings Legal
Defendant : Gibson & Gibson
Case(s) referred to in judgment(s):
Nil
(Page 3)
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 2 November 2012 and has been edited from the transcript.)
1 There is an application by Eastland Medical Systems Ltd (Eastland), as plaintiff, seeking by its originating summons issued in this court that there be an order made pursuant to s 76 of the District Court of Western Australia Act 1969 (WA), remitting District Court action 2168 of 2011 (in which it is a defendant) from the District Court to the Supreme Court.
2 Moreover, the originating summons seeks that upon the action being remitted to the Supreme Court, it be admitted to the Commercial and Managed Cases List and case managed by myself, concurrently with Supreme Court action CIV 1991 of 2011.
3 Section 76 of the District Court Act provides a broad, unfettered power for a Supreme Court judge to remit a District Court action to this court. Section 76 provides:
A judge of the Supreme Court may, upon the application of any of the parties to an action or matter brought in the Court, if he thinks fit order that the action or matter be tried or heard in the Supreme Court sitting at such place as is specified in the order.
Background
The Supreme Court proceedings
4 There are existing proceedings in this court that I currently case manage. They were commenced on 9 June 2011 by writ. The action is CIV 1991 of 2011. It is a defamation action. Pursuant to the statement of claim of 16 August 2011, Mr Douglas Arthur Sims (Mr Sims) brings proceedings against Dr James Cecil Innes Jooste (Dr Jooste).
5 The defamation proceedings relate to a publication on a publically accessible website known as HotCopper by a posting made by Dr Jooste on 10 June 2010. The posting looks to be a comment about corporate governance and transparency in relation to Mr Sims and a corporation.
6 Arising out of that Internet publication, Mr Sims issued his defamation writ in which he complains of a popular (false) innuendo at par 6 of the statement of claim. But, in the alternative, at par 7 Mr Sims also complains of what is referred to as a legal (true) innuendo, by a meaning that is derived from the published words, read with the benefit of
(Page 4)
- further knowledge. The further knowledge that Mr Sims contends for is that, in part, the words appeared on a part of the HotCopper website relating to Eastland; hence an alleged link between the corporate defendant in the District Court action and the posting by Dr Jooste that is complained of as being defamatory.
7 The District Court proceedings are at a considerably more advanced stage in terms of their overall readiness for trial contrasted to the state of the Supreme Court defamation action. The defamation action, although started in June 2011, has been the subject of considerable pleading disputation. There were pleading issues about the statement of claim. Then there have been further issues over the defence, in particular the defence of justification that Dr Jooste has, through his legal advisers, caused to be pleaded.
8 A strike-out application was brought against the amended further substituted defence of 6 February 2012 filed by Dr Jooste. The pleading was attacked on the basis of issues surrounding the alleged defence of justification. See particularly par 11 of that further substituted amended defence of 6 February 2012, referring to s 191(1), s 184(1), and s 184(2) of the Corporations Act 2001 (Cth) and certain offences. See also in par 13 references to conduct by officers of corporations, which are contended as part of the defence of justification.
9 The defamation proceedings alone are complex. They are specialist in content, particularly regarding the defences raised. The proceedings have not advanced all that far yet. I assess that there is considerable work to be done in terms of getting that defamation action closer to trial. A reply, I note, was filed on behalf of Mr Sims on 17 September 2012. On 18 September 2012, I signed consent orders between the parties that effectively programmed requests for particulars, answers to particulars and the giving of discovery.
10 Mr Sims' solicitors of record in the defamation action (Michael Paterson & Associates) are different to the lawyers currently representing him in his District Court proceedings (Gibson & Gibson).
11 The District Court proceedings have been entered for trial and presently await trial dates. This is apparent from Ms Cosentino's affidavit sworn 9 October 2012 outlining the progress of that action, part of which appends a Certificate for Listing Conference from counsel. On 16 August 2012 counsel certified that the pleadings were in order; the estimated length of the trial was 10 days; that the number of witnesses the plaintiff
(Page 5)
- intended to call was five; and other matters in accordance with the requirements of that certificate.
12 The relative state of progress in and as between the two actions bears heavily upon the discretion I now exercise. If both actions were in their relative infancy, I would be more readily amenable to amalgamating. In this particular case, however, the District Court's action is the considerably more advanced of the two actions. I was told that a recent status conference to allocate dates had been stood over, effectively pending my determination of the present remitter application.
13 To be injected into the overall evaluation is the fact there has been filed (before me) a minute of proposed amended defence and counterclaim of 31 October 2012 in the District Court action by Eastland. It has not been filed in the District Court. It is, in status, only a minute. But the minute has been helpfully provided for Eastland to show how it would like to amplify the extent of the dispute presently in the District Court. But first Eastland would need to circumvent jurisdictional obstacles in the District Court.
14 Eastland has not moved for leave in the District Court to have its pleadings adjusted or to bring a counterclaim in terms identified by the minute. It is accepted that what Eastland would be doing by an amended pleading of such character as the minute would be framing an action that is, in part, outside the jurisdiction of the District Court.
15 Mr Sims' action in the District Court is to obtain fixed employment entitlements under an employment contract that he contends he enjoyed with Eastland during his tenure with that corporation.
16 Eastland foreshadows by its minute it would like to raise, by way of defence against Mr Sims, an array of matters arising out of his alleged non-compliance with, or transgressions against the Corporations Act. This is particularly in reference to the claim Mr Sims articulates by cl 15(c) of his employment contract, pursuant to which Mr Sims seeks an amount to be paid to him at the termination of his employment that is equivalent to two years' tax-free base salary at the time of his termination, plus the superannuation payable. I refer in that respect to par 23 of Eastland's minute of amended counterclaim.
17 That issue carries with it associated issues concerning an alleged contravention of s 209 of the Corporations Act, although there is no explicit plea of illegality as regards that provision. There seems to be an intention to argue via Eastland's minute that by reason of non-compliance
(Page 6)
- with the Corporations Act, Mr Sims was knowingly concerned in a contravention by Eastland vis-à-vis s 208 and so, that there is a contravention of s 209(2). The consequence of all that may then be to entitle Eastland to compensation against Mr Sims, pursuant to s 1317H of the Corporations Act.
18 There are some other matters in the minute of counterclaim concerning alleged breach of statutory directors' duties by Mr Sims, formulated between pars 29 and 31, and then, further contentions regarding alleged breaches of fiduciary duty by Mr Sims. At face value they could raise equitable causes of action that present as well outside the present controversy and of course, the limited statutory jurisdiction of the District Court.
Arguments
19 The question is how the actions ought to proceed most optimally? For Eastland, it is said that there is no point making application in the District Court for leave to amend as per its minute to pursue a amended defence and counterclaim, as there is the jurisdictional problem.
20 So, Eastland instead applies to remit the entire District Court proceedings to this court, then for Eastland's amended defence and counterclaim to be filed in this court in remitted proceedings. Then there would then be no jurisdictional impediments it is said. That would be the first phase.
21 After having remitted and then enlarged the scope of a dispute, which once was the District Court action, the second phase would be programming and case managing the expanded action along with the present defamation action in this court. It is said by Eastland there is an overlap of issues in the existing two actions, particularly regarding the pleas of justification concerning Mr Sims' non-compliance with the Corporations Act and the like.
22 Eastland says amalgamating the actions would be a convenient way to deal with both matters. Reducing potential for inconsistent factual findings arising out of the District Court action perhaps being decided first as between Eastland and Mr Sims, with possibly different evidence led in the Supreme Court defamation action, potentially produce different judicial conclusions. It is said that such an outcome is undesirable, and would be obviated by the aggregation of actions as proposed.
(Page 7)
23 Mr Sims resists the remitter and amalgamation proposal. He says that he presently pursues a relatively straightforward District Court action that is now ready for a trial. He is only seeking what he is entitled under his employment contract. That claim for $600,000 plus interest is well within the jurisdiction of the District Court. His action he says ought not to be diverted, tied down or bound up with a defamation action that is essentially still embryonic in the Supreme Court. More particularly, Mr Sims also says that the foreshadowed subject matter of the amended counterclaim can be pursued in the Supreme Court as a separate and distinct action, if necessary.
Evaluation
24 The justice system should not unnecessarily hold up a litigant from pursuing that litigant's right to a trial if their action is ready to be heard. Were the District Court action at an earlier stage, the transfer and aggregation proposal in this court would be a strong consideration in terms of sensible uniform case management and overall convenience. But Mr Sims' action against Eastland is a relatively simple one and is clearly now ready for trial in the District Court. It should not be held up without some good reason.
25 Is it more convenient for Mr Sims' action to be remitted to the Supreme Court? I test that by reference to whether there may be seen some lasting prejudice to Eastland, or to Dr Jooste in terms of potential outcomes favourable to Mr Sims in the District Court.
26 Overall, it seems to me here that whilst there may be theoretical advantages in terms of having all Sims/Eastland/Jooste disputes resolved together in one place at one point in time, that there is not seen any particularly prejudicial difficulty for Eastland or Dr Jooste arising out of an earlier trial and a completion of the District Court proceedings. As it stands the District Court action is between Mr Sims and Eastland alone. It does not involve, let alone bind Dr Jooste.
27 Courts are well familiar with, and experienced in, accommodating situations where transcripts of evidence from different proceedings are used in subsequent trials. Here there would be no real advantage from a present transfer to this court over these trials being heard and determined separately.
28 There could be some advantages if all actions were heard together in this court by the same judge and the evidence in one stood as the evidence in the other. But overall I am not persuaded, bearing in mind the still
(Page 8)
- embryonic nature of a foreshadowed counterclaim, that possible advantages are enough to tip the balance in terms of denying Mr Sims his day in the District Court.
29 I detect no tangible potential prejudice, bearing upon Dr Jooste or Eastland, arising out of allowing the District Court proceedings to reach their culmination. I cannot, on the face of it, see any realistic prejudice to them of any moment to persuade me, in an exercise of discretion, to remove the District Court proceedings to this court.
30 I have also weighed Eastland's potential issue estoppel arguments. But there are different parties involved in each place. Hypothesising a commencement in this court of a new action that is, in effect, the minute of defence and counterclaim of Eastland foreshadowed against Mr Sims, I still do not detect any viable potential for a successful Anshun estoppel. That is the case particularly in circumstances where Eastland has only foreshadowed equitable claims which do not fall within the jurisdictional parameters of the District Court. I cannot see any court of equity in these circumstances being concerned over delaying or acquiescent conduct warranting a discretionary Anshun estoppel being invoked. There could hardly be an estoppel against a claim that could not be run in the District Court by reason of legitimate jurisdictional constraints.
31 I have considered overlap and convenience arguments based upon the asserted intersections of underlying facts. Again I assess them as well capable of being managed using court transcripts or the like. The foreshadowed amended minute of counterclaim seems to raise stand-alone potential causes of action.
32 That counterclaim could be commenced in the jurisdiction of this court. It could potentially be case managed by this court, possibly in alignment with the defamation action. However, such a decision would be made once an action and a pleading was actually filed by Eastland in this court.
33 In the end, I am not persuaded that the District Court proceedings should be transferred to this court. I refuse that application.
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