Edwin Moldauer v Constellation Brands Inc (ARBN 103 442 646)

[2013] HCASL 138

EDWIN MOLDAUER

v

CONSTELLATION BRANDS INC (ARBN 103 442 646)

[2013] HCASL 138
A14/2013

1. The applicant was employed by the respondent in the State of California in the United States.  The respondent purported to terminate the applicant's employment in October 2002.  On 1 November 2002, the applicant entered into a severance agreement, but the parties do not agree whether the respondent was the counterparty to that agreement.  On 1 October 2004, the applicant commenced an arbitration with the American Arbitration Association, claiming that the respondent had wrongfully withheld his remuneration, because his employment had not been validly terminated.  That arbitration was stayed by the Supreme Court of the State of New York in February 2005, on the ground that the severance agreement was a bar to the applicant's claim.

2. On 4 April 2012, the applicant commenced proceedings against the respondent in the Supreme Court of South Australia, claiming damages for unpaid wages.  On 11 September 2012, a Master of the Supreme Court (Lunn J) permanently stayed the proceedings on the ground that the Supreme Court was a clearly inappropriate forum.  The applicant appealed against that order.

3. On 22 February 2013, Kourakis CJ dismissed the appeal.  His Honour considered that Lunn J was correct to determine that the Supreme Court was a clearly inappropriate forum for the litigation of the dispute.  The issues that would likely arise in the case would turn on the law of the State of New York and, depending on the choice of law rules in New York, also on the law of California.  Expert evidence would be required as to the content of these laws.  It is likely that most of the relevant witnesses reside in the United States, and discovery of documents held there would prove important.  In the circumstances, the cost of litigating the dispute in Australia would be oppressive.

4. The applicant now seeks an extension of time in which to file his application for special leave to appeal to this Court.  That extension should be refused.  The court below applied settled principle to the facts of the case, and there is no reason to doubt its decision.  In any event, the application is incompetent; any appeal ought to have been brought in the first instance to the Full Court of the Supreme Court of South Australia.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
4 September 2013 P.A. Keane