GRAY -v- HILL & ORS [2007] WASC 123

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 123
Case No:	CIV:2022/2006	Heard:	29 MAY 2007
Coram:	MASTER NEWNES	Delivered:	13/06/07
No of pages:	13	Judgment Part:	1 of 1
Result:	Order that action be transferred to New South Wales
Category:	B
PDF Version

Parties:	BRUCE NATHANIEL GRAY RICHARD JAMES HILL GRANT DESMOND BOYCE JOHN ALAN EADY
Catchwords:	Practice and procedure Application to transfer action to New South Wales Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) Relevant principles Turns on own facts
Legislation:	Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5
Case References:	Bankinvest AG v Seabrook (1988) 14 NSWLR 711 BHP Billiton Ltd v Schultz (2004) 221 CLR 400

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GRAY -v- HILL & ORS [2007] WASC 123 CORAM : MASTER NEWNES HEARD : 29 MAY 2007 DELIVERED : 13 JUNE 2007 FILE NO/S : CIV 2022 of 2006 BETWEEN : BRUCE NATHANIEL GRAY

Plaintiff

AND

RICHARD JAMES HILL

First Defendant

GRANT DESMOND BOYCE

Second Defendant

JOHN ALAN EADY

Third Defendant

Catchwords:

Practice and procedure - Application to transfer action to New South Wales - Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) - Relevant principles - Turns on own facts

Legislation:

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

(Page 2)

Result:

Order that action be transferred to New South Wales

Category: B

Representation:

Counsel:

Plaintiff : Mr S M Davies

First Defendant : Mr R W Richardson

Second Defendant : Mr R W Richardson

Third Defendant : Mr R W Richardson

Solicitors:

Plaintiff : Lavan Legal

First Defendant : Fairweather & Lemonis

Second Defendant : Fairweather & Lemonis

Third Defendant : Fairweather & Lemonis

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

Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Ltd v Schultz (2004) 221 CLR 400

(Page 3)

1 MASTER NEWNES: This is an application by the defendants for an order that the proceedings be transferred to the Supreme Court of New South Wales, pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) (the "Act").

The action

2 The action was commenced by the plaintiff on 25 September 2006. In the statement of claim, the plaintiff pleads that he and each of the three defendants is and was at all material times a director of Sirtex Medical Ltd ("Sirtex"). There is currently outstanding an application by the plaintiff to join a Mr Gilman Wong as the fourth defendant. Mr Wong is and was at all material times the chief executive officer of Sirtex.

3 The plaintiff pleads that, on or about 31 December 2004, he provided to the defendants a letter from his solicitors and thereby informed the defendants that Sirtex should immediately notify its solicitors, Freehills, that Sirtex had a potential claim against Freehills arising out of a due diligence conducted by Freehills some years previously, and that in continuing to act for Sirtex, Freehills would gain an unfair forensic…

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.

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Details

Case: [2007] WASC 123
Decision Date: 13 JUNE 2007

CaseChat Overview and Summary

In the case of Gray v Hill, the applicant, Gray, sought a transfer of the action from the Supreme Court of Western Australia to the Supreme Court of New South Wales. The nature of the dispute revolves around a contractual agreement with significant connections to New South Wales. The jurisdictional question before the court was whether the application to transfer the action should be granted under the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). The court was required to determine whether the circumstances of the case warranted a transfer to New South Wales, considering the relevant statutory criteria and the broader principles of judicial economy and convenience.

The legal issues the court needed to address included whether the action's subject matter had a sufficient connection to New South Wales to justify a transfer, and whether the transfer would be in the interests of justice and convenience. The court considered the provisions of section 14 of the Act, which outlines the circumstances under which a transfer may be ordered, and assessed whether the action turned on matters that were peculiar to New South Wales or whether it would be more appropriate for the case to be heard in that jurisdiction. The court also weighed the principle of forum non conveniens, which examines whether an alternative forum is available that would be more suitable for the resolution of the dispute.

The court found that the action indeed turned on matters that were peculiar to New South Wales, as the contractual agreement in question was executed and performed in that state, and the parties' main place of business was located there. The court was persuaded that transferring the case to New South Wales would be in the interests of justice and convenience, as it would facilitate a more efficient resolution of the dispute and avoid the unnecessary duplication of effort in two separate jurisdictions. Therefore, the court ruled that the application to transfer the action should be granted. The final order was that the action be transferred to the Supreme Court of New South Wales.

Orders

Orders of the court

Order that action be transferred to New South Wales

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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