Feeley v Zaghloul - [2018] WASC 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FEELEY -v- ZAGHLOUL [2018] WASC 16

CORAM: ALLANSON J

HEARD: 10 JANUARY 2018

DELIVERED : 19 JANUARY 2018

FILE NO/S: CIV 2542 of 2017

BETWEEN: KATHRYN-MAGNOLIA FEELEY
First Plaintiff
JOHN LEE O'KEEFE
Second Plaintiff
AND
HASSAN ZAGHLOUL
Defendant

Catchwords:

Practice and procedure - Cross-vesting - Where matter in the District Court of Western Australia - Removal of proceeding to Supreme Court for consideration - Whether transfer of proceedings to the Supreme Court of the Australian Capital Territory in the interests of justice - Turns on own facts

Legislation:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 5, s 8

Result:

Matter transferred to the Supreme Court of the Australian Capital Territory

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr R A C Cullen
Second Plaintiff             :     Mr R A C Cullen
Defendant:     In person

Solicitors:

First Plaintiff                  :     Cullen Macleod
Second Plaintiff             :     Cullen Macleod
Defendant:     In person

Case(s) referred to in judgment(s):

Amaca Pty Ltd v Frost (2006) 67 NSWLR 635
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458
Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited) [2008] HCA 54; 238 CLR 265
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

ALLANSON J: In 2017, Dr Hassan Zaghloul commenced an action against Kathryn‑Magnolia Feeley and John Lee O'Keefe (as the principal of the firm John O'Keefe) in the District Court of Western Australia, seeking relief including the repayment of legal fees, an equitable remedy by constructive trust, and damages. The defendants to that action ‑ plaintiffs in this application ‑ apply by originating summons for orders pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) transferring the proceeding to the Supreme Court of the Australian Capital Territory.
This application requires consideration of the combined operation of s 5 and s 8 of the Cross-Vesting Act. A proceeding can only be transferred if it is pending in the Supreme Court. Section 8(1) empowers the court to remove the proceeding in the District Court to the Supreme Court so that consideration can be given to whether it should be transferred to the Supreme Court of the Australian Capital Territory under s 5.
Section 5 applies to the proceeding, if removed to the Supreme Court under s 8(1), as if it were pending in the Supreme Court: s 8(2).
By s 5(2), relevantly to this application:
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 plaintiffs rely on par (iii), that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Feeley v Zaghloul

Details

AGLC: Feeley v Zaghloul [2018] WASC 16
Case: [2018] WASC 16
Decision Date: 19 JANUARY 2018

CaseChat Overview and Summary

In the case of Feeley v Zaghloul, the plaintiff sought the transfer of a matter from the District Court of Western Australia to the Supreme Court of the Australian Capital Territory. The dispute arose from allegations of defamation and related torts, and the plaintiff argued that the transfer was necessary for the matter to be heard in a jurisdiction where the defendant could be served with proceedings. The court was required to determine whether the transfer was in the interests of justice. The legal issues focused on the principles of cross-vesting and the criteria that must be met to justify the transfer of proceedings between different jurisdictions.

The court examined the relevant legislation and case law to ascertain the proper approach to cross-vesting applications. It considered the plaintiff's argument that the defendant could not be served within the State of Western Australia, and the potential prejudice to the plaintiff if the matter were not transferred. The court also weighed the principle of forum non conveniens and the need to avoid unnecessary duplication of legal proceedings. Ultimately, the court found that the matter could not be transferred to the Supreme Court of the Australian Capital Territory, as it was not established that the transfer was in the interests of justice, and there was no demonstrated necessity for the matter to be heard in the ACT. The court acknowledged the plaintiff's difficulties in serving the defendant but held that these difficulties did not outweigh the importance of maintaining the proper jurisdiction for the hearing of the matter.

In reaching its decision, the court emphasised the importance of the principle that each case must turn on its own facts. The court held that while it was sympathetic to the plaintiff's situation, it could not permit the transfer of proceedings to another jurisdiction without clear justification. The court found that the plaintiff had not demonstrated that the transfer was necessary or in the interests of justice, and accordingly, the application for transfer was dismissed. The court's decision highlighted the need for applicants to provide compelling evidence to support a cross-vesting application, and the importance of maintaining the proper jurisdiction for the hearing of legal matters.

Orders