La Doria SpA v Global Resourcing Pty Ltd
[2009] VSC 89
•16 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 4032 of 2009
| La DORIA SpA | Plaintiff |
| v | |
| GLOBAL RESOURCING PTY LTD | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 MARCH 2009 | |
DATE OF JUDGMENT: | 16 MARCH 2009 | |
CASE MAY BE CITED AS: | LA DORIA SPA v GLOBAL RESOURCING PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 89 | |
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PRACTICE AND PROCEDURE – Application to transfer proceeding - Jurisdiction of Courts (Cross‑Vesting) Act 1987, s.5 – Location of potential witnesses – Whether appropriate forum.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. De Young | Clayton Utz |
| For the Defendant | Mr D. Harrison | Leonard Legal |
HIS HONOUR:
This is an application by the defendant to have proceedings commenced in this Court transferred to the Supreme Court of New South Wales. Such an application is made under s.5 of the Jurisdiction of Courts (Cross‑Vesting) Act1987. That section relevantly provides, and I am summarising rather than quoting, that where a proceeding is pending in the Supreme Court of Victoria and it appears to this Court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State, then the Victorian court shall transfer the relevant proceeding to that other court.
The word "shall" is one that has attracted the attention of the authorities. It is clear that if the Supreme Court of Victoria, that is the court in which the relevant proceeding is pending, comes to the view that it is in the interests of justice that the relevant proceeding be determined elsewhere, then the Victorian court shall transfer the relevant proceeding to the other court. There is no discretion to retain the proceeding in this jurisdiction.
The issue therefore is whether it is in the interests of justice that the relevant proceeding be transferred.
I have heard able and helpful submissions from both sides of that argument. It is said on the part of the applicant/defendant that, the case being one of goods sold and delivered, the pleadings which consistent only, at this point, of an amended statement of claim, do not set out with sufficient particularity the plaintiff's case so as to enable the defendant to plead to it.
I make no finding on that point although it does seem to me that for present purposes the defendant is in a position to tell the Court what it apprehends the issues will be when the matter comes for trial. If that apprehension is one that is incorrectly based upon inadequate pleadings, then of course the defendant can be and would be excused from any incorrect statement of what the issues in fact will be at trial.
In those circumstances it seems to me that the defendant ought to have put in some acceptable form what it sees the issues to be so that the Court can best ascertain whether or not it is in the interests of justice that the proceeding be transferred.
The defendant has sought to overcome the difficulty to which I have just referred by its counsel, Mr Harrison, stating from the Bar table the issues as he currently apprehends them to be. I have taken Mr Harrison's outline of his understanding of the issues as being an accurate outline of his present understanding based upon the pleadings as they presently are.
Given the assistance of Mr Harrison in this way, I am, I think, in a position to make an appropriate evaluation of the difficulties which the defendant will face if the proceedings are heard in Victoria rather than in New South Wales. Mr Harrison has informed the Court that the defendant's position presently is that the plaintiff made unilateral changes to its price structures and having made those changes, has charged the defendant with amounts for the goods sold and delivered over and above those which it was entitled to charge.
The defendant also apprehends that it will, at trial, seek to adduce evidence to the effect that the plaintiff was entitled and required to meet certain customs charges which, as the circumstances of the dealings between the parties played out, were in fact met by the defendant and ought now to be the subject of an adjustment as between the plaintiff and the defendant.
Finally, the defendant anticipates seeking to persuade the Court that the goods or some of them were not delivered as ordered and that consequently the defendant has suffered a loss of profit.
Assuming that these will be issues at trial, it is, I think, clear that the defendant will seek to adduce evidence to support its position and that, however that evidence is given in‑chief, the plaintiff will wish to cross‑examine the deponent with a view to shaking or destroying the effect of the evidence given by that deponent.
Accordingly, the Court will be required to evaluate evidence given in the witness box, if not in‑chief then under cross‑examination.
In my opinion the plaintiff ought to have anticipated the necessity to have, before the tribunal of fact, viva voce evidence. The plaintiff also ought to have anticipated that that viva voce evidence would be called from witnesses based either in New South Wales, in the case of the defendant, or in Italy in the case of the plaintiff. Those witnesses who might be called from Italy, if they do not give their evidence by video link, will be no more inconvenienced by being called in Sydney than they would if they were called to give evidence in Melbourne.
On the other hand, the defendant's witnesses, assuming they are based in New South Wales and will be based in New South Wales when called, will be inconvenienced if they are required to give their evidence in Melbourne. Of course they may give their evidence by video link. To the extent, however, that their evidence is challenged, particularly if challenged in its veracity, the tribunal of fact will be assisted if the evidence is given in the presence of that tribunal rather than by video link.
I accept that that is one factor only in deciding whether or not evidence should be given by video link. I say nothing to suggest that witnesses will be required to be called from Italy, if video link facilities are available, that would obviate the necessity to have those witnesses physically present in Australia. But when we're talking about Sydney as opposed to Melbourne and we are talking about evidence which may be challenged as to its accuracy, the benefits of having the evidence given in person may well transcend the benefit of having the witness in a remote location giving evidence via video link.
These factors, as I say, should in my opinion have been considered by the plaintiff and its advisors in determining in which jurisdiction to issue these proceedings.
Sydney, in those circumstances seems to me to clearly be the appropriate location of the trial rather than Melbourne.
The plaintiff says in response that much work has been done, since the commencement of proceedings, from Melbourne and by practitioners based in Melbourne. I do not discount the importance of that proposition. I accept that the plaintiff has the benefit in Melbourne of the assistance of Mr Vincent Annetta, a partner of the plaintiff's solicitors who is resident in Melbourne and who speaks Italian and who has, no doubt, now established a relationship with the plaintiff which is of value to them. I also accept that considerable work has been done by Mr Annetta and others in the Melbourne office of the plaintiff's solicitors and that that work is of considerable value in progressing the proceedings.
For the reasons put forward by me in argument, it seems to me that to an extent at least the circumstances to which I have just referred must be neutralised by the fact that they flow from the original decision to commence the proceedings in Melbourne where, looked at objectively, Sydney seems to be the more appropriate location.
One cannot make an incorrect decision and then justify the status quo simply on the basis that the incorrect decision having been made and then having led to particular relationships being established and particular work being done, therefore the original fault should be in some way excused.
I also take into account, however, the argument put by Mr De Young on behalf of the plaintiff, that some of the work at least has been done, in effect, at the request of the defendant (although no doubt necessary in any event) but at the request of the defendant at a time when the defendant had not made known to the plaintiff its intention to bring the present application.
As Mr De Young has I think correctly submitted, that puts a different light on what otherwise might be a boot straps argument.
Even given that additional light, however, it seems to me that in the end, the interests of justice would be served if the proceedings were transferred. As Justice Hollingworth said in Beston Parks Management Holdings Pty Ltd v Sexton[1], the issues presently before the Court involve the Court undertaking a nuts and bolts management decision to decide which court is the more appropriate forum in the sense that one or other court has the most real and substantial connection with the subject matter of the proceeding. The possible connecting factors are, as her Honour then said, legion.
[1][2008] VSC 95.
Nevertheless, as I have earlier said, once it appears to the Court that it is in the interests of justice that the relevant proceedings be determined by another court, then there is no discretion but to order that the matter be referred or transferred to the other court.
Giving what I hope is appropriate weight to the very able submissions put on both sides, I have, for the reasons I have attempted to articulate, come to the conclusion that the proceedings should be transferred to the Supreme Court of New South Wales.
(Submissions re costs)
It is true that the plaintiff could have anticipated that the defendant's witnesses would be based in New South Wales, but the importance of the evidence that they might give and the considerations of ease of access as between Sydney and Melbourne, and the possibility that evidence might be given by video link, certainly if it were not going to be particularly contentious, are matters which crystallised only when Mr Harrison outlined his understanding of the issues which are likely to arise.
In short, I think the plaintiff might have anticipated those issues; but anticipation is one thing. Knowing what the defendant's position is or is very likely to be is another.
I think the parties are now in a much better place to know what is going to be in dispute when this matter comes to trial. And that I think is a very important consideration in deciding where the trial is best heard. Certainly it was a very important consideration for me. I think in those circumstances I should make no order as to costs.
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