Glenn v Kemp

[2022] NSWSC 551

Supreme Court

New South Wales

Medium Neutral Citation:

Glenn v Kemp [2022] NSWSC 551

Hearing dates:

4 May 2022

Decision date:

04 May 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Dismiss the notice of motion filed 25 March 2022.

(2)   The costs of the defendant’s notice of motion for transfer be costs in the cause.

(3)   List the matter for directions before the Registrar at 9am on 12 May 2022.

Catchwords:

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — application to transfer proceedings from Supreme Court of New South Wales to Supreme Court of South Australia — whether in interests of justice to transfer proceedings — where lawyers and parties based in multiple states in Australia — where chattel subject of proceedings based in New South Wales and Queensland — where claim in tort — where no clear forum for proceedings — where court not satisfied that transfer is in the interests of justice — where application dismissed

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Nature of the proceedings — where matter finely balanced — where matter brought to the attention of the court to assist in administration of justice — where order made that costs of the motion be costs in the cause

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 5

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Australian Protective Electronics Pty Ltd v Pabflow Pty Ltd (1996) 35 IPR 327

BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61

Category:

Procedural rulings

Parties:

Jenine Glenn (Plaintiff)
Noeleen Kemp (Defendant)

Representation:

Counsel:
M Foran (Plaintiff)
K Ryder (Defendant)

Solicitors:
Australian Law Partners (Plaintiff)
O’Loughlins Lawyers (Defendant)

File Number(s):

2020/350135

Judgment: EX TEMPORE

Introduction

1. By notice of motion dated 25 March 2022, Noeleen Kemp, the defendant/cross-claimant in the proceedings (the applicant), seeks an order that these proceedings be transferred to the Supreme Court of South Australia. The application is brought under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Act), which relevantly provides:

“5   Transfer of proceedings

…

(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.

…

(7)     A court may transfer a proceeding under this section on the application of a party to the proceeding, of its own motion or on the application of the Attorney-General of the Commonwealth or of a State or Territory.

…”

2. The applicant’s principal submission is that it is in the interests of justice that this Court transfer the proceedings to the Supreme Court of South Australia.

The background to the dispute

3. In order to give some background to the application, it is necessary to summarise the nature of the dispute between the parties. Ms Kemp’s case on her cross-claim is that, at some time between August 2017 and October 2017, she acquired a dog, Dante, from Jenine Glenn, the plaintiff/respondent. Ms Kemp resides in South Australia and Ms Glenn operates a dog-breeding business with Ms Morgan in Queensland and Northern New South Wales. Between November 2017 and 1 November 2019, Dante lived with Ms Kemp in South Australia.

4. On Ms Kemp’s case, in October 2019, Ms Glenn and/or her associate Ms Morgan asked Ms Kemp for permission to show Dante in Melbourne at the Melbourne Specialty Dog Show. Ms Kemp agreed and, as a consequence, Dante was flown to Victoria where he was exhibited, apparently with some success. Ms Glenn then took Dante back to Queensland in breach of the arrangement which had been made between them. Ms Kemp's case is that she asked for Dante to be returned and she reported the matter to the police. In late 2019, lawyers became involved but, notwithstanding discussions, Dante remains either in Queensland or northern New South Wales in the custody of Ms Glenn.

The procedural history

The commencement of proceedings by Ms Glenn in the District Court

5. On 10 December 2020, Ms Glenn filed a statement of claim in the District Court of New South Wales in which she alleged that she had made various requests of Ms Kemp for Dante to be available for showing purposes and for breeding purposes, but that Ms Kemp, in breach of the agreement, refused to provide Dante for those purposes. Ms Glenn claimed damages for breach of contract against Ms Kemp in the sum of $102,000, a mandatory injunction requiring her to transfer her part ownership in Dante to Ms Glenn and associated orders requiring Ms Kemp to sign relevant documents.

Ms Kemp’s cross-claim in the District Court

6. In an amended defence and cross-claim, Ms Kemp alleges that Ms Glenn took Dante without her permission after the Melbourne Specialty Dog Show and, following demands, refused or neglected to return Dante to her. She alleges that Ms Glenn committed the tort of detinue or conversion with respect to Dante. The relief claimed by Ms Kemp in her cross-claim includes declaratory relief, an order that Ms Glenn return Dante to Ms Kemp and various other associated orders including that frozen semen extracted from Dante be transferred to the sole ownership of Ms Kemp and an account of any money received from any showing or breeding of Dante without Ms Kemp's permission.

Ms Glenn’s discontinuance of her claim

7. The proceedings in the District Court were the subject of number of directions hearings. On 13 September 2021 the matter was listed for final hearing on 21 November 2021 before the District Court of New South Wales. When the matter came before the Court on 25 November 2021, Ms Glenn sought to discontinue the whole of her claim, to which Ms Kemp consented. The matter was also transferred to this Court.

The transfer of the proceedings from the District Court to this Court

8. I am informed by Mr Foran, who appears on behalf of Ms Glenn, that the request for transfer was made by Ms Glenn’s legal representatives as they were concerned that the District Court did not have jurisdiction to grant at least some of the relief claimed by Ms Kemp in her cross-claim. Mr Foran explained that the legal representatives took this course as they considered they had an obligation as officers of the Court to do so and not because of any forensic benefit to Ms Glenn.

9. As a consequence, Dicker SC DCJ, on 25 November 2021, vacated the trial, which was listed for hearing on that day, noted that Ms Glenn had discontinued her claim and made directions for her to file a notice of discontinuance and transfer the matter to this Court. On 30 November 2021, Ms Glenn filed a notice of discontinuance in the District Court in accordance with the directions made by Dicker SC DCJ on 25 November 2021.

Ms Kemp’s application for transfer to the Supreme Court of South Australia

10. The matter came before the Common Law Registrar of this Court on 10 March 2021, at which the time Registrar directed Ms Kemp to file and serve a notice of motion seeking that the matter be transferred to the Supreme Court of South Australia.

11. I am informed by Mr Ryder, who appears on behalf of Ms Kemp, that the legal representatives for Ms Glenn confirmed to the Registrar that they were not proposing to make an application that the proceedings be transferred to the Supreme Court of Queensland.

12. Both parties have filed affidavits and read them in support of, or in opposition to, the notice of motion. The background to this dispute has already been the subject of summary above. Ms Kemp deposes that she lives in South Australia, she is a retired public servant and that she has not been double-vaccinated against COVID-19. She is reluctant to travel interstate and would prefer to have the proceedings determined in her home state of South Australia.

13. In Ms Glenn’s affidavit she likewise sets out the background to the dispute as well as her business interests in Queensland and northern New South Wales where she breeds and shows dogs. She says that Dante's semen is stored in Queensland as all the semen from dogs whom she bred and of whom she has custody. She was located in Queensland but, in April 2022, she returned with Dante to her property at Iluka, in northern New South Wales.

14. Mr Ryder submits that the interests of justice favour South Australia as the jurisdiction which is most appropriate for the hearing of these proceedings. He says that not only does Ms Kemp, who, as the cross-claimant, is the moving party, live in South Australia but that she had custody of Dante for two years there. Mr Ryder submitted that the only reason Dante is in Queensland was because of Ms Glenn's conduct which was in breach of their arrangement and which amounted to a tort. In effect, he submitted that Ms Glenn would be taking advantage of her own wrong if this Court refused to transfer the matter to South Australia on the basis that New South Wales was a more appropriate jurisdiction. He submitted that there was no real or substantial connection of the dispute to New South Wales and that it was essentially a matter of happenstance that the proceedings were commenced in New South Wales. Mr Ryder informed me that Ms Kemp had only filed her cross-claim in New South Wales because Ms Glenn had filed her statement of claim in the District Court of New South Wales and she felt obliged to avoid the multiplicity of proceedings.

15. Ms Kemp challenged the allegation by Ms Glenn that she lives part-time in New South Wales and referred to the circumstances that at times Ms Glenn advertises the Iluka property on Airbnb.

16. Mr Foran submitted that there is a very limited connection between the proceedings and South Australia: namely, that Ms Kemp lives there and does not wish to travel. He submitted that was significant that Ms Kemp had filed the cross-claim in the District Court. He submitted that the finances of the parties were a neutral factor since all the Court knew was that Ms Kemp was a retired public servant and that Ms Glenn owned multiple properties. He noted that there is no evidence about the value of Ms Glenn’s equity in those properties.

Consideration

17. The principles which apply are not in issue. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 (Schultz), the High Court held that, in considering whether it was in the interest of justice that the proceeding be determined in the Supreme Court of South Australia, this Court had made a material error in taking into account the plaintiff’s choice of forums as a matter not lightly to be overridden. The High Court confirmed that there was no onus on the applicant for transfer to persuade the Court that another jurisdiction were better and that the real question and the only question for present purposes was whether it was in the interests of justice to make the transfer or not. Gummow J at [71] also referred to the legislative policy in s 5(7) of the Act, which provides that a “court may transfer a proceeding under this section on the application of the party to the proceeding, of its own motion or on the application of the Attorney-General of the Commonwealth or of a State or Territory”. Gummow J explained that the wording of s 5(7) indicated that it was “... inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.”

18. At [99], Gummow J referred to the relevance of the lex loci delicti of the tort (which in that case was accepted to be South Australia). His Honour observed that there was an advantage in a case where the lex loci delicti of the tort was the same as the forum where the matter was heard because it meant that “debates as to classification of statutory provisions as substantive or procedural in nature cannot arise.”

19. In the present case, unlike in Schultz, the identification of the lex loci delicti of the tort is not straightforward. The gist of conversion or detinue depends on where the defaulting party has unreasonably refused a reasonable demand for the return of the chattel: Australian Protective Electronics Pty Ltd v Pabflow Pty Ltd (1996) 35 IPR 327 at 353 (Parker J).

20. I note that the demand and refusal and their locations are not specifically pleaded in the cross-claim. However, it would appear from the factual background, which has been the subject of the evidence before me today, that there is at least a potential that Victoria, New South Wales or Queensland could be the lex loci delicti since Ms Glenn would appear to have travelled from the show in Victoria where she showed Dante through New South Wales back to Queensland. The timing and the location of where she was when she refused to comply with the demand by Ms Kemp for a return of Dante is a matter which is not clear on the material before me. However, although I can assume that the demand for the return of Dante was made in South Australia (since that is where Ms Kemp was), the cause of action in conversion or detinue did not arise until Ms Glenn unreasonably refused to comply with that demand.

21. While there is a national law of tort, there is still the potential for procedural and substantive matters to arise, as referred to by Gummow J in Schultz at [99].

22. In a sense, there is nothing particularly convenient about New South Wales. It happens to be the forum where Ms Glenn commenced the proceedings in the District Court and Ms Kemp, as I accept she did, responded by defence and cross-claim to avoid multiplicity of proceedings. Ms Glenn would equally well have started the proceedings in Queensland. Had it not been for Ms Glenn’s proceedings, Ms Kemp could have commenced the proceedings which began as a cross-claim in South Australia. These matters of history may explain why the proceedings are presently before this Court, but they do not determine where the interests of justice lies.

23. There is, in my view, no clear forum for these proceedings. There is something to be said for South Australia because of Ms Kemp's residence there. There is something to be said for Queensland because of Ms Glenn’s residence there, or in Illuka, close to the border. There is something to be said for Queensland or New South Wales because Dante has been located there since late 2019. Nonetheless the proceedings have been in this jurisdiction for some time. Directions have been made and the Court Rules complied with in terms of the pleadings filed and the interlocutory steps taken. There is no present application for the proceedings to be moved to Queensland, although Mr Foran has submitted, in the alternative, that I could transfer the proceedings of my own motion to the Supreme Court of Queensland pursuant to the power conferred on me by s 5(7) of the Act.

24. Ms Kemp's lawyers are located in South Australia. Ms Glenn's solicitors are located in Queensland although her barrister is in Sydney. I regard that matter as fairly evenly balanced. There is also a suggestion that there may be witnesses from Melbourne who may need to be called in the proceedings but no application has been made that the proceedings be transferred to Victoria. As to Ms Kemp's disinclination to travel interstate, this Court has fairly well-developed procedures for allowing parties to appear and give evidence by audio visual link. I note that I allowed Ms Kemp to appear and participate from Adelaide by audio visual link in order to minimise the costs of this notice of motion and to increase the access to justice. I also note that Ms Glenn is participating remotely, although Mr Foran is here in person.

Conclusion

25. Ms Kemp as the applicant bears no onus of persuading me that it is in the interests of justice to transfer the matter to South Australia. Having considered all of the matters referred to above, it appears to me that it is in the interest of justice that the proceeding be determined by this Court. It does not appear to me that it is in the interest of justice or that it is more appropriate that the relevant proceedings be determined by the Supreme Court of South Australia. Accordingly, the notice of motion will be dismissed.

Costs

26. Ms Glenn seeks the costs of the notice of motion and seeks such costs on an indemnity basis. The application for costs on an indemnity basis is made in reliance on a Calderbank offer (headed “Without prejudice except as to costs” made on behalf of Ms Glenn dated 9 March 2022) in which Ms Glenn’s solicitors said that they considered either Queensland or New South Wales to be the appropriate jurisdiction and said that their client consented for the matter to remain in New South Wales but did not consent to the matter being transferred to South Australia. Ms Glenn’s solicitors also said that they would consent to the matter being transferred to the Supreme Court of Queensland with no order as to costs.

27. On 19 April 2022, Ms Glenn’s solicitors sent a further letter to Ms Kemp’s solicitors, referring to the previous letter. The offer was reiterated and the letter contained a paragraph:

“For the avoidance of doubt if your client does not consent we intend to tender this letter and attachment at the hearing of the Motion on 4 May 2022 and rely on it for all relevant purposes, including on the question of costs.”

28. Mr Foran also sought an order that costs be assessed on a gross sum basis pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW). He gave details of figures for solicitors fees and disbursements which together amount to a sum in the order of about $12,000. He accepted that no notice of those figures or that application had been given to Ms Kemp’s legal representatives.

29. The general rule, as stated by Uniform Civil Procedure Rules 2005 (NSW), r 42.1, is that costs follow the event. If the general rule were followed, Ms Kemp, the applicant, would have to pay Ms Glenn’s costs of the notice of motion as she was unsuccessful in her application for transfer. Further, ordinarily a Calderbank offer would entitle the maker of that offer, which was not accepted, to costs on an indemnity basis. The policy behind this is to encourage the parties to communicate with each other to avoid court appearances and disputed matters which may take the time and resources of the Court and the parties.

30. Mr Ryder, however, submitted that the matter was very finely balanced and that it would be unfair to visit the costs of the application on Ms Kemp. He submitted that the preferable order was that the costs of the motion be costs in the cause. Further, he was not in a position to deal with the application that the costs be assessed on a lump sum basis, no prior notice having been given of that application. He also relied on what he said was a change in position by Ms Glenn that she sought to have this Court transfer the matter to Queensland as an alternative argument in opposition to Ms Kemp’s notice of motion.

31. I do not consider Ms Glenn to have changed her position as to the appropriate forum. Whilst she was content for the matter to remain in New South Wales she was also amenable to the matter moving to Queensland. Furthermore, Mr Foran did not submit that Ms Glenn had made any such application for transfer but relied on the power of this Court under s 5(7) of the Act to transfer the matter to another court of its own motion.

32. I am not persuaded either that the general rule should apply in the present case or that indemnity costs ought be ordered.

33. Effectively, what Ms Kemp has done is to bring the question of the appropriateness of this forum to the attention of the Court. There are certainly other jurisdictions which are potentially involved and which would potentially be appropriate. Section 5(7) of the Act highlights the importance to the administration of justice of courts being able to make such decisions of their own motion.

28. Because of the finely balanced nature of where the interests of justice lie, I accept Mr Ryder’s argument that it is not appropriate to visit his client with the cost of this notice of motion. I am persuaded by him that the appropriate order for costs on the notice of motion is an order that the costs of the defendant’s notice of motion for transfer be costs in the cause.

Orders

35. For the reasons given above, I make the following orders:

1. Dismiss the notice of motion filed 25 March 2022.

2. The costs of the defendant’s notice of motion for transfer be costs in the cause.

3. List the matter for directions before the Registrar at 9am on 12 May 2022.

**********

Decision last updated: 06 May 2022