Internet Business Systems Australia Pty Ltd v Webb - [2007] VSC 347

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW LIST

PRACTICE COURT

No. 4644 of 2007

INTERNET BUSINESS SYSTEMS AUSTRALIA PTY LTD	Plaintiff
v
JOHN ROBERT ANDREW WEBB AND OTHERS	Defendants

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August, 3 September 2007
DATE OF RULING:	18 September 2007
MEDUIM NEUTRAL CITATION:	[2007] VSC 347

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Courts – Cross-vesting – Jurisdiction of Courts (Cross-vesting) Act 1987 s5(2)(b)(iii) – Interests of justice – Proceeding transferred to the Supreme Court of New South Wales.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Bloch	Rockman & Rockman
For the Defendants	Mr B Reilly	Mallesons Stephen Jaques

HER HONOUR:

The plaintiff claims that the defendants agreed to sell all their shares in Southpac Finance Systems Pty Ltd (“Southpac”) and Bureau Services Australia Pty Ltd (“Bureau”) for $1,400,000. The plaintiff relies upon an agreement allegedly entered into in December 2005, alternatively, an agreement entered into in November 2006. The defendants deny the existence of any such agreement.

The plaintiff is a company incorporated in Victoria. The third and sixth defendants are companies incorporated in New South Wales. Each of the other four defendants is an individual who lives in Sydney.

The defendants seek to have this proceeding transferred to the Supreme Court of New South Wales, pursuant to s5(2)(b)(iii) of the cross-vesting legislation.[1]
[1]By their summons dated 27 June 2007, the defendants also sought to strike out certain parts of the amended statement of claim. As that is an application which ought to be brought before a Master, I declined to hear that part of the summons. Both sides agreed that the strike out application would have no bearing on the transfer application.

The substantial question before me is whether this court or the NSW court is the more appropriate forum for determining the parties’ dispute.

Relevant principles

The application is brought pursuant to s5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987, which relevantly provides:

Where -
(a)a proceeding (in this sub-section referred to as the ‘relevant proceeding’) is pending in the Supreme Court (in this sub-section 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 principles in relation to an application under s5 were comprehensively considered by the High Court in the recent decision in BHP Billiton Limited and Schultz.[2]
[2](2004) 221 CLR 400.

The High Court has affirmed that, in determining pursuant to s5(2)(b)(iii) whether it is in the interests of justice to order a transfer, a court must be satisfied as to which court is the “more appropriate forum”, in the sense that it has the most real and substantial connection with the subject matter of the proceeding. This has been described as involving a…

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] VSC 347
Decision Date: 18 September 2007

CaseChat Overview and Summary

Internet Business Systems Australia Pty Ltd, the plaintiff, filed a proceeding against Webb, the defendant, in the Federal Circuit Court of Australia. The case involved a dispute related to the cross-vesting of jurisdiction under the Jurisdiction of Courts (Cross-vesting) Act 1987. The plaintiff sought to transfer the matter from the Federal Circuit Court to the Supreme Court of New South Wales, arguing that the latter court was better suited to hear the case due to various factors that aligned with the interests of justice.

The primary legal issue before the court was whether the transfer of the case from the Federal Circuit Court to the Supreme Court of New South Wales was warranted under section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987. This section allows for the transfer of a proceeding if it is in the interests of justice to do so. The plaintiff contended that the case's complexity, the need for expert evidence, and the presence of parties and witnesses in New South Wales justified the transfer.

The court considered the interests of justice and the relevant factors outlined in section 5(2)(b)(iii) of the Act. It determined that the case's complexity and the requirement for expert evidence, coupled with the geographical considerations, made the transfer appropriate. The court concluded that the interests of justice would be best served by transferring the proceeding to the Supreme Court of New South Wales.

The court ordered the transfer of the proceeding to the Supreme Court of New South Wales, in accordance with section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987. This decision reflects the court's consideration of the various factors that contribute to the interests of justice in the context of cross-vesting jurisdiction.

Orders