Ha v Pharmacy Board of Victoria

[2002] VSC 233

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7464 of 2000

CB SYSTEMS PTY LTD ACN 056 230 178	Plaintiff
v
MICHAEL DAVID GRANSHAW AND OTHERS	Defendants

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JUDGE:	PAGONE J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 MAY 2002
DATE OF JUDGMENT:	30 MAY 2002
CASE MAY BE CITED AS:	CB SYSTEMS PTY LTD v GRANSHAW & ORS
MEDIUM NEUTRAL CITATION:	[2002] VSC 233	First Revision 19 June 2002

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CATCHWORDS:      Rule 77.05 – Vacating hearing date – Balance of convenience – Cross-vesting proceedings – Clearly inappropriate forum test – More appropriate forum – Relevance of early hearing date.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr C Pannam QC and Mr G Hardy	The Law Offices of Barry Fried
For the Defendants	Dr G Griffith QC and Mr G Moore	Pearce Webster Dugdales

HIS HONOUR:

1. This is an appeal under Rule 77.05(4) from an order of Master Kings made on 21 May 2002 dismissing a summons by the defendants filed on 9 May 2002 seeking the vacation of the date fixed for the trial of the proceeding and seeking its stay.  The date fixed for the trial is 7 June 2002.

1. The basis of the defendants' application lies in the desirability that the issues to be litigated in this proceeding be determined in the New South Wales Supreme Court, along with two other proceedings issued in the Industrial Relations Commission of New South Wales in Court Session which the defendants in the proceeding before me wish to have transferred to the New South Wales Supreme Court. An application on summons was issued on 28 May 2002 in the Equity Division of the New South Wales Supreme Court seeking orders under section 8 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) for the two Industrial Relations Commission proceedings to be transferred to the Supreme Court of New South Wales. I am told that the summons is returnable on 18 June 2002 before a registrar but that it is capable of being referred out for hearing by a judge on that date.  I am also told that in the event that the New South Wales transfer application is successful, the defendants wish to make an application to this court for the Victorian proceeding to be transferred to the New South Wales Supreme Court pursuant to sub-section 5(2) of the Jurisdiction of Courts Cross Vesting Act 1987 (Vic).  If the New South Wales transfer application is not successful the defendants wish to apply to the New South Wales Supreme Court to have the Industrial Relations Commission proceedings transferred to this court.

1. There is no doubt in my mind about the desirability of the three proceedings being heard together.  Each arise from the same contracts and facts; they will each require evidence from substantially the same people; and any one proceeding is likely to dispose of all or at least some of the issues which will arise in the other proceedings.  Indeed, on 2 August 2001 the Industrial Relations Commission ordered that the two applications be heard and determined together, and I was informed that they were only separate applications because that forum does not provide for the claims made in the second application being raised in the first.

1. Desirable although it is for the matters to be heard together, I have decided that I should neither vacate the hearing date fixed for 7 June 2002 nor grant the stay sought by the defendants.

1. There are several reasons which lead me to that conclusion.  One reason is that the hearing date for the Victorian proceeding is fixed for 7 June 2002 coupled with the fact that it will deal with, and will probably dispose of, most (if not all) of the issues in contention between the parties in all of the proceedings.  In contrast, there is, at best, no certainty that the New South Wales Supreme Court will transfer to itself the New South Wales Industrial Relations Commission applications; nor is there any certainty about the New South Wales proceedings being heard soon if the Industrial Relations Commission applications are transferred to the New South Wales Supreme Court.

1. There is a number of interesting legal issues to be resolved before the Industrial Relations Commission applications will be transferred to the New South Wales Supreme Court.  In Resarta Pty Ltd v Finemore[1], Einstein J referred to the New South Wales Court of Appeal the consideration of the principles to be applied in determining whether applications pending in the Industrial Relations Commission, a specialist tribunal, should be cross vested to the New South Wales Supreme Court.  It is clear from the reasons given by his Honour that there exists in New South Wales a diversity of views as to the significance or otherwise to be attributed to the fact that the proceedings sought to be removed and cross vested are pending in the Industrial Relations Commission[2].  His Honour's decision itself was that he should not himself decide the question, it needing the authoritative guidance of the Court of Appeal.  Resarta is due to be heard by the Court of Appeal on 24 July 2002 and, as the actual decision of Einstein J itself demonstrates, it is unlikely that a similar application to a single judge is likely to be disposed of until the Court of Appeal decision is known.

   [1][2002] NSWSC 75

   [2]Ibid at paragraph 19

1. In The Owners Strata Plan No.51487 v Broadsand Pty Ltd[3], Bryson J decided against the deferral of proceedings of the Supreme Court of New South Wales (which had reached an advanced stage of preparation) rather than to await the outcome of the proceedings in the Industrial Relations Commission.  It may well be, as his Honour observed at paragraph 12, that a consequence will be that the areas of dispute in subsequent proceedings may be limited by the outcome in the earlier proceeding, but in this case it is not a consequence which, in my view, justifies depriving the plaintiff of its trial which is due to commence next week.

   [3][2001] NSWSC 813

1. In Broadsand, his Honour went on to say:

"The 'clearly inappropriate forum' test establish[ed] by Voth v Manildra Flour Mills Pty Ltd, if it applied, would not be satisfied and under that test the present proceedings could not be stayed.  The judgment of Mason CJ, Deane Dawson & Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd clearly shows approval of observations of Deane J in Oceanic Sun including the sentence which his Honour's opens at 241: 'A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and have his claim heard and determined.'  In my opinion this important principle should be the point at which consideration of the present application and applications like it opens, and proceedings in this Court should not be stayed pending determination of an application to the Industrial Relations Commission under s.106 arising out of related facts unless there are some practical considerations or other considerations which, in the interests of the administration of justice, override the plaintiff's prima facie right to insist upon the exercise of this Court jurisdiction.  To my mind what is required is something more than an appraisal of the balance of convenience relating to proceeding in one court or the other; the litigants' prima facie right to have his proceedings heard and determined would not be overridden by any narrow balance of convenience.  To override it should be shown, for some substantial reason, that it is injurious to the attainment of justice that the proceedings should not be deferred.  As it happens, I am of the view in the present case that considerations of convenience strongly favour allowing the proceedings in the Supreme Court, which are in an advanced state of preparation, to continue."[4]

I would respectfully adopt a like approach in the matter before me.  The matter before me is not under section 5(2)(b)(i) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) but, rather, calls for a consideration of whether the jurisdiction of this court, regularly invoked by the plaintiff and correctly submitted to by the defendants, should be stayed in favour of the jurisdiction of the Industrial Relations Commission.  The approach taken in Broadsand is consistent with the decision in Schmidt v Won[5].  It cannot be said, in my view, that the jurisdiction of this court is clearly inappropriate.  I should add however that in any event I am not satisfied that it would be more convenient, in all the existing circumstances, or that it would be "more appropriate" (that is to adopt the language of section 5(2)(a)(i) relied upon by the defendants), for the Victorian proceeding to be determined by the New South Wales Supreme Court.  The fact is that the Victorian proceeding is ready to be tried next week in Victoria, its transfer to New South Wales is not certain, and if it is not transferred it may not be tried for some time.

[4]Ibid at paragraph 14

[5][1998] 3 VR 435, pp. 453 and 455

1. I am also persuaded that the conduct of the defendants in these proceedings does not justify the grant of the orders they now seek.  The proceedings in this court were commenced on 1 November 2000, and those commenced in the Industrial Relations Commission were commenced two days later.  The first defendant had foreshadowed an application to stay proceedings in Victoria as long ago as 6 October 2000 and again thereafter.  An application to stay the Victorian proceedings has been in the defendants' contemplation and consideration before their commencement and throughout their preparation.  Not only was no application for a stay made until 8 May 2002, but the defendants filed both a defence and a detailed counterclaim.  The date of 7 June 2002 for the hearing of the matter was fixed as long ago as 2 October 2001 but no step to stay the proceeding was taken until May of this year.

1. Dr Griffith QC, who appeared with Mr Moore for the defendants, contended that the position of the plaintiff may be compensated by an order for costs and interest, and also offered an undertaking on behalf of the defendants to pursue with due diligence the steps necessary to transfer the Industrial Relations Commission applications to the New South Wales Supreme Court and all cross vesting applications necessary to have the three proceedings determined together.  However, it seems to me that neither an award of costs, nor the undertakings, are sufficient in this case to justify depriving the plaintiff of its expectation of a hearing next week.

1. Accordingly, I dismiss the appeal with costs in favour of the plaintiff.

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