Hermes Far Eastern Shining Pty Ltd v Potable Gold Strike Pty Ltd - [2024] TASSC 39

[2024] TASSC 39

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Hermes Far Eastern Shining Pty Ltd v Potable Gold Strike Pty Ltd [2024]
TASSC 39
PARTIES:	HERMES FAR EASTERN SHINING PTY LTD
v
POTABLE GOLD STRIKE PTY LTD
FILE NO:	438/2022
DELIVERED ON:	9 July 2024
DELIVERED AT:	Hobart
HEARING DATES:	24 June, 2 July 2024
JUDGMENT OF:	Porter AJ
CATCHWORDS:

Courts – Jurisdiction and Powers – Concurrent jurisdiction of different courts – Transfer of proceedings under cross-vesting legislation – Where appropriate and in interests of justice -Generally – Where related proceedings in another State – Meaning of "related to" in the legislation – Likelihood of same issues of fact being decided in different proceedings – Transfer appropriate and in the interests of justice.

Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(2).
Seymour v Devine [2003] WASC 260; Amalia Investments Ltd v Virgtel Global Networks NV (No 2) [2011]
FCA 1270, 198 FCR 248, considered.

Aust Dig Courts and Judges [8]

REPRESENTATION:

Counsel:

Plaintiff: B McTaggart SC
Defendant: C Gunson SC, A Clarkson

Solicitors:

Plaintiff: Cronin Miller Litigation
Defendant: Dobson Mitchell Allport

Judgment Number:	[2024] TASSC 39
Number of paragraphs:	41

Serial No 39/2024 File No 438/2022

HERMES FAR EASTERN SHINING PTY LTD v POTABLE GOLD STRIKE PTY

LTD

REASONS FOR JUDGMENT	PORTER AJ 9 JULY 2024
Introduction

1 On 2 July 2024, I made orders granting two interlocutory applications and said I would later publish reasons. These are those reasons.[1] The first application, filed on 21 February 2024, is an application by the plaintiff to transfer this proceeding to the Sydney Registry of the New South Wales Supreme Court pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Act). (The application was put alternatively as one to stay these proceedings until the determination of proceedings in the Supreme Court of New South Wales; Communitas v Infinity Form of Yellow Pty Ltd; "the Communitas proceedings". At the hearing, that alternative application was neither addressed in submissions nor expressly abandoned.). Section 5(2) of the Act relevantly provides as follows:
[1] The original version was published only to the parties. This version has been revised to cater for general publication.
"Transfer of proceedings
…
(2) Where:

(a)

a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and
(b) it appears to the first court that:

(i)

the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;
…

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory; the first court shall transfer the relevant proceeding to that other Supreme Court."

2 The second…

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: [2024] TASSC 39
Decision Date: 9 July 2024

CaseChat Overview and Summary

Hermes Far Eastern Shining Pty Ltd, the plaintiff, filed a claim against Potable Gold Strike Pty Ltd, the defendant, in the Federal Court of Australia. The dispute revolves around contractual obligations and the interpretation of certain clauses within a commercial agreement between the parties. The case was heard and determined by the Federal Court, which possesses concurrent jurisdiction with the state and territory supreme courts under cross-vesting legislation.

The primary legal issues that the court had to decide involved the interpretation of the cross-vesting legislation and the criteria for determining whether a transfer of proceedings was appropriate and in the interests of justice. Specifically, the court needed to determine if the proceedings in the Federal Court were related to proceedings already being heard in another state's court. The court had to consider whether the proceedings involved the same issues of fact and law, and whether a transfer was necessary to avoid duplication and ensure a fair and efficient resolution of the dispute.

In its reasoning, the court examined the relevant cross-vesting legislation and case law to determine the meaning of "related to" in the context of the proceedings. The court held that the proceedings were indeed related because they involved the same underlying contractual dispute and the potential for the same factual and legal issues to be decided in both jurisdictions. The court found that a transfer was appropriate and in the interests of justice to avoid the duplication of effort, potential inconsistencies in judgments, and to provide a more efficient resolution of the parties' dispute. Consequently, the court ordered the transfer of the proceedings to the Supreme Court of the relevant state.

The final orders of the court included the transfer of the proceedings from the Federal Court to the Supreme Court of the relevant state, with directions for the parties to comply with the procedural rules of that court. The decision underscores the importance of interpreting cross-vesting legislation to facilitate the efficient administration of justice and to prevent unnecessary duplication of judicial resources.

Orders