Kranenberg v AFT Pharmaceuticals Pty Ltd - [2012] SASC 98

Supreme Court of South Australia
(Applications Under Various Acts or Rules)
KRANENBERG v AFT PHARMACEUTICALS PTY LTD
[2012] SASC 98
Judgment of The Honourable Justice White (ex tempore)
30 May 2012
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - IN GENERAL
The defendant to proceedings for a breach of an employment contract sought an order under s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA), transferring the proceedings to the Supreme Court of New South Wales.
Whether the proceeding arises out of, or is related to, a proceeding in the Supreme Court of New South Wales and it is more appropriate to be heard by that Court - whether it is otherwise in the interests of justice for the action to be heard and determined in the Supreme Court of New South Wales.
Held, refusing the defendant's application, at this stage of the proceedings it cannot be said that it is appropriate in the interests of justice for the order of transfer to be made.
Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 5, referred to.
Cini v Pets Paradise Franchising SA Pty Ltd (2008) 102 SASR 117, applied.

KRANENBERG v AFT PHARMACEUTICALS PTY LTD
[2012] SASC 98
Chamber Application

WHITE J. (ex tempore) The plaintiff was formerly employed by the defendant as its regional manager for South Australia and the Northern Territory. She sues the defendant for damages for breach of her employment contract. The proceedings were commenced in the District Court but have been transferred to this Court in order that the Court may consider the present application made by the defendant.
The defendant denies the plaintiff’s claim for damages and seeks an order under s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA), transferring the proceedings to the Supreme Court of New South Wales. The plaintiff resists such an order.
Under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act, the Court must make the order for transfer if satisfied of particular matters. Two of those matters are pertinent for present purposes. The Court must be satisfied that the proceeding in this Court arises out of, or is related to, a proceeding in the Supreme Court of New South Wales and that it is more appropriate for these proceedings to be heard by the Supreme Court of New South Wales (s 5(2)(b)(i)). Alternatively, the Court must be satisfied that it is otherwise in the interests of justice for the present action to be heard and determined in the Supreme Court of New South Wales (s 5(2)(b)(iii)).
I adopt, without repeating, the summary of the principles which should guide the determination of applications of the present kind made by Bleby J in Cini v Pets Paradise Franchising SA Pty Ltd [1].
[1] [2008] SASC 287 at [8]-[9]; (2008) 102 SASR 177 at 183-4.
The plaintiff is a resident of South Australia. The defendant’s registered office is in New South Wales but it seems that it may not have a physical office in that State. There is material suggesting that the home of the defendant and of its managing director is in New Zealand. The defendant does not have a physical office in South Australia.
The principal basis on which the defendant seeks the transfer to the New South Wales Supreme Court is to permit the plaintiff’s claim to be heard by the same Judge and at the same time as, or immediately after, the hearing of a claim brought against it by another former employee, Ms Foustellis. The plaintiff was the supervisor of Ms Foustellis. Both the plaintiff and Ms Foustellis were retrenched with effect on 25 November 2009 and bring claims of a generally similar kind against the defendant.
Ms Foustellis resides in New South Wales and commenced her claim in the Supreme Court of New South Wales on 22 August 2011. She is represented in those proceedings by the same firm of solicitors which represents the plaintiff in this Court.
The defendant points to a number of matters indicating the convenience and desirability of both actions being heard by the one Court. It contends that the employment contracts of the plaintiff and Ms Foustellis are similar, although not identical and that a number of common issues of both fact and law will arise. It contends that Ms Foustellis will have to adduce evidence from the plaintiff to support her claim and, that in turn, that the plaintiff will have to adduce evidence from Ms Foustellis to support her claim. In addition, the defendant thinks it likely that the plaintiff will have to adduce evidence from at least one other person who is resident in New South Wales. This is in addition to another witness who is resident in Victoria who the defendant apprehends the plaintiff will have to call. The defendant does not itself intend to adduce any evidence from a person who is resident in South Australia.
A principal matter to which the defendant refers is the reliance by the present plaintiff and Ms Foustellis on two documents in support of their claims to unpaid bonuses. They are letters said to have been written by the defendant dated 12 August and 3 October 2009. The defendant denies the authenticity of each of these letters and asserts positively that they are forgeries. The aspects of the letter which are said to be forgeries have been particularised in the affidavits on which the defendant relies in support of the present application.
If the claims of forgery are made good, the claims of the plaintiff and Ms Foustellis, at least in respect of unpaid bonuses, will fail. In that respect there is a common issue of fact. In addition, in the event that the documents are found to be authentic, identical issues of construction of the two letters will arise. Accordingly, the plaintiff submits that the requisite relationship between the two sets of proceedings required by s 5(2) of the Act is established because core issues in each of the two proceedings are identical.
The plaintiff does not dispute that the matters which I have just mentioned give rise to a relationship between the two sets of proceedings of the kind contemplated by s 5(2)(b)(i) of the Jurisdiction of Courts (Cross-vesting) Act.
The defendant emphasises the desirability of the Court avoiding the possibility of inconsistent verdicts in relation to these issues if the authenticity of the two letters, and, if necessary, their proper construction, is determined in separate proceedings by separate courts.
It is not possible for this Court to reach a concluded view about whether, in the event that an order for transfer to New South Wales is made, the New South Wales Supreme Court would order consolidation or some form of joint or sequential hearing of the two actions. That will be a matter for the New South Wales Supreme Court. I do, however, consider that in the event of transfer, the two matters would have sufficient in common for there to be a real prospect that the New South Wales Supreme Court may make an order of the kind I have just mentioned, even if such a course was opposed by the plaintiff or Ms Foustellis. I acknowledge that one possible order may be an order for sequential trials of the two actions before the same Judge. If an order of that kind was made, some of the benefits which the defendant wishes to achieve by the order for transfer may not be realised.
In resisting the application for transfer, the plaintiff has identified 17 persons resident in South Australia who she says she will likely call as witnesses in the trial. She also goes on to identify one person resident in Western Australia, three in Victoria, three in Queensland and two in New South Wales who are also likely to be called. The two in New South Wales include Ms Foustellis. As I understand it, the evidence of most of these witnesses will relate to the quantification of the plaintiff’s claim for the unpaid bonus.
The plaintiff will need to call more witnesses than Ms Foustellis on this topic. That is because the sales relevant to Ms Foustellis’ bonus claim are sales which were made in New South Wales alone, whereas in the case of the plaintiff it is sales made in South Australia, the Northern Territory, New South Wales, Western Australia and Queensland which will be pertinent. Further still, the retail sales made by the defendant will be pertinent to the quantification of the plaintiff’s claim but not to the quantification of Ms Foustellis’ claim.
At this early stage of the proceedings it is not possible for the Court to reach any firm conclusion as to whether it will be necessary for the plaintiff to call evidence from all those persons. It does not know the precise nature of the evidence which the plaintiff proposes leading from each. There is an issue as to whether the evidence which those persons could give may relate to sales of a kind not pertinent to the quantification of the particular claim for bonus made by the plaintiff.
The very number of persons involved gives rise to a little scepticism in my mind that all will be necessary as witnesses, whether the matter proceeds in this Court or in the Supreme Court of New South Wales. However, I agree that the prospect of expense and inconvenience for the plaintiff in having to arrange the attendance of a number, possibly a large number, of South Australian residents for a trial in Sydney is a very relevant consideration.
The plaintiff has also referred to the fact that it is the Fair Work Act 1994 (SA) which applies to her contract, whereas it is the New South Wales counterpart which applies to Ms Foustellis’ contract. Ultimately, however, the plaintiff acknowledged that this was not a relevant consideration because it is the common law which will determine the fate of the respective claims of Ms Foustellis and herself.
In summary, the plaintiff opposes the transfer on grounds of the inconvenience, cost and expense which a transfer would occasion.
As I mentioned during the course of the argument, if the respective claims of Ms Foustellis and the plaintiff were in the District Court and Supreme Court of this State, I think it almost inevitable that an order would be made for the two actions to be transferred to the one Court so that orders could be made for some form of joint or sequential hearing taking account of the evidence in each. That is a factor which points in favour of transfer. It is not a decisive consideration because there is the additional expense and inconvenience to the plaintiff of having to take witnesses to Sydney if the order for transfer is made.
A consideration against the order for transfer is this: to my mind there must be a very real prospect, even the probability, that there will not be two trials of these actions because the plaintiff in whichever action is second is likely to recognise the force and effect of the outcome in the first, if that is adverse to the plaintiff. I also think it probable that the defendant would recognise the reality of the outcome of the first if that was adverse to him.
In summary, I consider that there are considerations which point in each direction.
As I consider the matter to be reasonably finely balanced, I am not satisfied at this stage that it is appropriate in the interests of justice for the action in this Court to be determined in the Supreme Court of New South Wales. Nor am I satisfied that, under the alternative limb, it is otherwise in the interests of justice for the order of transfer to be made.
I emphasise that I have said “at this stage”. That is because the parties have not yet addressed or explored the possibility of agreement as to the fate of one claim determining the fate of another. Nor have the parties addressed or explored the means by which the evidence relating to the quantification of the two claims may be agreed or limited, thereby shifting the location of the interests of justice.
An agreement, or an absence of agreement once the parties have sought agreement on these matters, would be very relevant to the fate of the present application.
As I think I made plain during the course of the argument, this is a case in which the Courts should expect the parties to give active consideration to both these issues, to address in a realistic and sensible way means by which two separate trials could be avoided, and to address means by which the quantification of the respective claims can be agreed or simplified according to whichever construction of the letters in question is made.
I emphasise, in order to indicate I do not regard my present decision as foreclosing the prospect of an order for transfer being made at some future time, that I am not satisfied at this stage that the interests of justice require an order for transfer. That position may change if the parties do not reach agreement, or make realistic attempts to reach agreement, on the matters to which I referred earlier in these reasons.
Accordingly, I refuse the defendant’s application for an order for transfer of the present action to the Supreme Court of New South Wales.