John Beever (Aust) Pty Ltd v National Australian Pipelines Pty Ltd

[2015] VCC 785

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL CASES LIST

Case No. CI-15-01997

JOHN BEEVER (AUST) PTY LTD	Plaintiff
v.
NATIONAL AUSTRALIAN PIPELINES PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2015
DATE OF JUDGMENT:	12 June 2015 (revised 15 June 2015)
CASE MAY BE CITED AS:	John Beever (Aust) Pty Ltd v. National Australian Pipelines Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VCC 785

REASONS FOR JUDGMENT

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Catchwords:              Practice and procedure – Jurisdiction – Building dispute arising solely within South Australia – Proceeding issued in County Court seeking judgment under South Australian legislation – Defendant served with the Writ in Victoria where it “resides” – Whether “court of competent jurisdiction” in South Australian Act means a Court of that State – Building and Construction Industry Security of Payment Act2009 (SA) – Section 36 County Court Act 1958 (Vic) – Borg Warner (Australia) Ltd v Zupan [1982] VR 437 followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. McAndrew of Counsel	Champion Lawyers
For the Defendant	Mr J. Twigg QC and Mr B. Murphy of Counsel	HWL Ebsworth

HIS HONOUR:

1The question for decision is whether the County Court of Victoria can determine a claim brought pursuant to the Building and Construction Industry Security of Payment Act 2009 (SA) (“the Act”), where the dispute arises solely within South Australia.

2The plaintiff claims jurisdiction pursuant to section 36 of the County Court Act 1958 (Vic) on the basis that, although “the whole cause of action arose outside Victoria…the defendant resided in Victoria at the time of service of the summons upon [the] defendant”.

3The defendant contends that the County Court does not have jurisdiction because the conferring of jurisdiction by the South Australian Act to a “court of competent jurisdiction” does not include a court outside South Australia and specifically does not include the County Court. This is similar to the issue the Full Court of the Supreme Court of Victoria considered and determined in Borg Warner (Australia) Ltd v Zupan [1982] VR 437.

4Mr Twigg QC submitted on behalf of the defendant that, as a matter of construction of the South Australian legislation, the County Court is not a “court of competent jurisdiction”. In support of this submission, he referred to:

a.the fact that sections 15(4), 16(4) and 25(4) of the South Australian legislation contain fetters on the exercise of jurisdiction; specifically the limitations on taking into account matters of cross-claim. Mr Twigg QC suggested this would be inconsistent with, for example, the exercise of jurisdiction under the Act by the Supreme Court of Victoria or another superior court;

b.the procedure under section 25 of the Act was not a procedure which could be followed in the County Court because it anticipates the filing of a certificate in circumstances where the process would not be served on a defendant resident in Victoria. It was said that the phrase, “court of competent jurisdiction”, should not be given a different meaning in different parts of the South Australian legislation;

c.section 29 of the Act appears to anticipate that the courts of South Australia have a special role to play under the legislation. Specific reliance was placed on ss. 3 which gives authority to the Administrative and Disciplinary Division of the District Court of South Australia to review certain administrative decisions relating to the nomination of adjudicators under the Act;

d.the South Australian legislation is part of “uniform” legislation throughout Australia and further, any other construction of the South Australian Act (or similar legislation in other States) would make the application of cross vesting legislative provisions unnecessary.

5In my view, these argument should not succeed for the following reasons:

a.what were said to be fetters on the jurisdiction of a superior court in another state are, in my view, matters of substantive (not procedural) law that would be applied by a local court, as an application of the law which it must apply for the determination of the substantive issues;

b.the fact that the process in section 25 could not be followed in the County Court simply indicates that, as a matter of construction of that section, the County Court could not be regarded as a “court of competent jurisdiction” for such an application;

c.the fact that there is a scheme of “uniform” legislation makes it more likely that the intention of the legislature was that, in circumstances such as the present, so long as the substantive law of South Australia were applied, there would be no difficulty in any other “court of competent jurisdiction” (including interstate courts) exercising jurisdiction;

d.the cross-vesting legislation is legislation providing a process for the transfer of cases between various courts. Section 20 of the Service and Execution of Process Act 1992 (Cth) also provides a process for dealing with the appropriateness of hearing cases in a particular Australian court, without raising the issue of the jurisdiction of the court where the proceeding is issued. The defendant does not rely upon that legislation but rather it submits that the Court has no jurisdiction because it is not a “court of competent jurisdiction” within the South Australian legislation.

6In my view this Court has jurisdiction and is a competent court to deal with the present proceeding.

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Certificate

I certify that the preceding 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 12 June 2015 and revised on 15 June 2015.

Dated: 15 June 2015

Olivia Bramwell

Associate to His Honour Judge Anderson