Krueger Transport Equipment Pty Ltd v Parry Bros Pty Ltd

[2008] VMC 7

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

CIVIL

Case No. X01275675

Krueger Transport Equipment Pty Ltd	Plaintiff
v
Parry Bros Pty Ltd	Defendant

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MAGISTRATE:	S Garnett
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2008
DATE OF DECISION:	18 July 2008
CASE MAY BE CITED AS:	Krueger Transport Equipment Pty Ltd v Parry Bros Pty Ltd
REASONS FOR DECISION

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Catchwords: application for an order to stay the proceedings pursuant to s 20 of the Service

& Execution of Process Act

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the Defendant  HIS HONOUR:

1.   This is an application by the Defendant for an order to stay the proceedings pursuant to S 20 of the Service & Execution of Process Act.

2.  Krueger Transport issued proceedings in the Melbourne Magistrates Court on 9 May 2008 claiming $13,384.27c plus interest in relation to repair work done on trailers at the request of Parry Bros situated in Tamworth NSW.

3.   Krueger Transport has its Head Office in Melbourne and other branches in NSW and Queensland.

4.  A Defence was filed in the proceeding on 4 June 2008. Particular 2 of the Defence confirm that the Defendant requested the Plaintiff to undertake repair work to the trailer and alleged this was due to a design fault. It is not in dispute between the parties that the repair work was undertaken at the plaintiff’s NSW branch. It is contended by the defendant that the cause of action, if any, arose in NSW and the Melbourne Magistrates Court does not have jurisdiction to determine the claim.

5.  The application for a stay was lodged on 25 June 2008 together with an affidavit in support sworn by Mr Parry, the Managing Director of the defendant. The plaintiff, in response to the application filed an affidavit sworn by John Whelan; its Melbourne based Credit Manager.

6.   It does not appear to be in dispute that the defendant ordered a 7.725m “A” Kurtainer trailer and a straight “B” Kurtainer trailer from the plaintiff in March 2007 following discussions and negotiations between Mr Parry and Mr Kelly, a sales representative of Krueger’s based at their NSW branch. The trailers were delivered to the defendant in April 2007 and by September 2007; the parties became aware of damage to the trailers, which required repair.

7.  There is a dispute between the parties, which forms part of the substantive proceedings as to the cause of the damage, and the discussions between Mr Parry, Mr Kelly and Krueger’s NSW workshop manager, Mr Biez.

8.  There is no dispute that the repair work was performed at the plaintiff’s NSW workshop or that a quote was provided to the defendant in relation to the repair work that was to be performed.

9.  The defendant contends that the appropriate forum to determine the dispute is the Local Court of NSW because;

- the defendant is based in NSW;

- the discussions between the defendant and the plaintiff concerning the cause of
the damage to the trailers occurred with the plaintiff’s NSW based employees;

- the repair work was performed at the plaintiff’s NSW workshop;

- the defendant intends to call expert evidence from a witness who is based in
NSW; and,

- the defendant would be disadvantaged if required to defend the proceedings in
Melbourne.

10.In response, the plaintiff contended that this Court is the appropriate forum because;

- its Head Office is situated in Melbourne;

- the trailers, which are the subject matter of the dispute, were manufactured at its
Melbourne workshop and its engineers are located here;

- the witnesses relevant to the issue in dispute are located in Melbourne.

11.S 20 of the Commonwealth Service and Execution of Process Act provides that the Court may stay these proceedings if it is satisfied that the Local Court of NSW has jurisdiction to determine all the matters is issue and it is appropriate to do so.

12.

S 20 (4) identifies matters the Court is required to take into account in determining - the place of residence of the parties and witnesses likely to be

called;

- the place where the subject matter of the proceeding is situated;

- the financial circumstances of the parties;

- any agreement between the parties concerning forum;

- the law that would be most appropriate to apply;

- whether a related or similar proceeding has been commenced.

13.In deciding the application, I have also had regard to;

- S 100 (4) of the Magistrates Court Act 1989 which provides that the Court does not cease to have jurisdiction in respect to a cause of action because part of the cause arose outside Victoria – if a material part of it arose in Victoria; and,

- The decisions of the High Court in Oceanic Sunline Special Shipping Co Inc v
Fay (1988) 165 CLR 197 and the more recent decision of Mr Justice Harper of
the Victorian Supreme Court in the matter of Holt v Forehan (2006) VSC 148
dated 21 April 2006. These authorities stand for the proposition that where
jurisdiction exists it should not be withdrawn unless the chosen forum is “clearly
inappropriate”. The onus is on the defendant, being the applicant in this
proceeding, to convince the Court that it should put aside its prima facie duty to
exercise its jurisdiction.

14.The dispute in this proceeding in essence relates not to the repair work performed by the plaintiff at its NSW workshop but whether the damage to the trailers was due to the faulty design of them or the use to which the defendant put them. The Plaintiff company has its Head office in Melbourne, the manufacture (and presumably the design) of the trailers occurred in Melbourne, the plaintiff’s engineers are situated here and although there may be some disadvantage to the defendant in defending these proceedings in Melbourne, it has not persuaded the Court that it is “clearly an inappropriate” forum to determine the claim.

ORDERS:

15. Therefore, I refuse the application to stay the proceeding.