Mitchell v Schneider No. Scciv-03-83

MITCHELL v SCHNEIDER
[2003] SASC 221
Civil

SULAN J: This is an application by the defendant, Harold Schneider (“Schneider”) in an action commenced by the plaintiff, Diane Mitchell (“Mitchell”), seeking an order that the action be transferred to the Supreme Court of Northern Territory pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (SA) (“the South Australian Act”). On 21 January 2003, Mitchell commenced proceedings in the Supreme Court of South Australia seeking a property adjustment order pursuant to the De Facto Relationships Act 1991 (NT) and equitable relief against Schneider, her former de facto partner.
Introduction
There are two issues to be determined. First, whether the Court should exercise its discretion to accept jurisdiction in the proceedings brought by the plaintiff pursuant to s 9 of the South Australian Act.[1] Secondly, if the Court accepts jurisdiction, whether it should transfer the matter to the Supreme Court of the Northern Territory pursuant to s 5(2) of the South Australian Act. If it appears to the Court that it is more appropriate in the interests of justice that the proceedings be determined in the Northern Territory then the Court should transfer the said proceedings.
[1] s 9. The Supreme Court –
(a)may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Commonwealth or a State relating to cross vesting of jurisdiction; and
(b)may hear and determine a proceeding transferred to that court under such a provision”
The plaintiff’s proceedings
In or about May 1992, Mitchell and Schneider commenced living in a de facto relationship in Darwin in the Northern Territory. Mitchell claims that apart from a short time in 1995 when she and Schneider lived separately, at all times during the relationship they lived together at 14 Lanyon Terrace, Moil, in Darwin.
In the statement of claim, Mitchell alleges that at the beginning of the relationship, Schneider and herself had developed a common intention that they would conduct a commercial enterprise and this would be for the purposes of their joint relationship. During the relationship, Schneider operated and owned a cement carting business in Darwin. It is alleged that Mitchell performed tasks for the business for no remuneration, such as assisting in the keeping of the books of account and washing uniforms. Mitchell states that during the relationship the business generated significant profits and goodwill.
The relationship continued up to February 2001, apart from a period in 1995 when the parties separated. At the time of the cessation of the relationship Mitchell alleges that she was forced to leave the residence due to Schneider’s constant mental abuse and episodes of physical violence against her and her possessions. The statement of claim alleges that the relationship broke down because Schneider had problems with alcohol. It is further alleged that she was forced to move to South Australia, as a matter of urgency, to escape the defendant’s mental and physical abuse. Mitchell claims that she chose to move to South Australia because she has relatives in this State. She presently resides at Morphett Vale.
Mitchell claims that since she has resided in South Australia she has been unable to obtain suitable full time work and has been forced to borrow money. The plaintiff claims that she has been forced to convert accrued employment entitlements into cash, on a disadvantageous basis. Mitchell states that she has no assets of any significant value and the remainder of her assets have been left at the residence she shared with the defendant. These assets include jewellery worth approximately $2,000. The plaintiff states that she has had to borrow money to issue these proceedings.
Mitchell claims that the common intention of the parties was that she have part ownership as an equitable tenant in common with Schneider in the assets, the legal title to which was accumulated by Schneider during the relationship. Mitchell claims that Schneider holds the assets accumulated by him during the relationship upon a constructive trust for Mitchell as a part tenant in common.
Mitchell also seeks a property adjustment order pursuant to ss 13 and 18 of the De Facto Relationships Act 1991 (NT).[2] She claims that she has made, both directly and indirectly, financial and non-financial contributions to the business and other assets acquired by the parties. Mitchell claims that it is “just and equitable” within the meaning of s 18 of the De Facto Relationships Act 1991 (NT) that an order be made pursuant to ss 13 and 18 of that Act, adjusting the interests in the property held by Schneider in favour of Mitchell.
[2] De Facto Relationships Act 1991
Mitchell seeks an order for an account as to all monies received by Schneider to the use of Mitchell, as servant or agent of Mitchell in the business, an order that Schneider return to Mitchell her jewellery and household items and an order that Schneider provide restitution to Mitchell for the unremunerated work carried out by her in the business.
Jurisdiction
Section 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT) (“the Northern Territory Act”) provides that the Supreme Court of another State has and may exercise original and appellate jurisdiction with respect to a matter in which the Supreme Court of the Northern Territory has jurisdiction, otherwise than by reason of a law of the Commonwealth or of another State. The definition of “State” in both the South Australian Act and the Northern Territory Act includes the Northern Territory. Section 4 of the De Facto Relationships Act 1991 (NT) invests jurisdiction to make orders and declarations under that Act in the Supreme Court of the Northern Territory. Section 62 of the Supreme Court Act 1979 (NT) invests the Northern Territory Supreme Court with jurisdiction to grant equitable relief. The relief sought by the plaintiff is, therefore, a State matter.
Section 9 of the South Australian Act provides that the Court may exercise jurisdiction conferred upon it by s 4(3) of the Northern Territory Act. The Court has a discretion whether it should exercise that power.[3] The discretion to deny jurisdiction should only be exercised in circumstances where it is clear that the plaintiff is forum shopping or for some other reason, such as where it can be shown that the plaintiff has commenced proceedings in a jurisdiction solely for the purpose of obtaining an unfair financial advantage over the defendant. In those circumstances, it may be that the Court will not accept jurisdiction.[4]
[3] Macks v Emanuele (23 January 1998 unreported No. 6523); SAGASCO South-East Inc and Ors v BHP Petroleum Pty Ltd (30 November 1998 unreported No. S6998).
[4] Bond Brewing Holdings Ltd v Crawford (1990) 1 WAR 517 at 521-522.
The plaintiff has resided in South Australia since about 1999 after she ceased residing with the defendant. She alleges that she came to South Australia where she has relatives who could assist her. She had a genuine reason to move to South Australia, as she needed family support. She has remained resident in the jurisdiction for some years. I consider that this Court should exercise the jurisdiction invoked by the plaintiff.
Cross –Vesting Application
On 13 May 2003, Schneider issued an application seeking an order that the action be transferred to the Supreme Court of Northern Territory pursuant to s 5(2) of the South Australian Act.
The defendant relies upon his affidavit sworn on 14 April 2003. Schneider states that there is no relevant connection between the subject matter of the plaintiff’s action against him and the State of South Australia other than that Mitchell now resides in South Australia. Schneider denies the allegations of alcoholism and violence and contends that Mitchell moved to South Australia because she wished to travel and visit her sister.
Schneider states that the Northern Territory is the forum with the most real and substantial connection to the action. He claims that this is because at all times during the de facto relationship, he and Mitchell resided in the Northern Territory. Schneider states that he is resident in the Northern Territory and all his assets, including the business, are situated there.
Counsel for Schneider submits that assertions made by the plaintiff in her pleadings will require him to call evidence from witnesses in Darwin, such as Schneider’s friends, doctor and accountant. He submits that if a valuation of his business is to be performed this would best be done by a valuer from Darwin.
In response to Schneider’s cross-vesting application, the plaintiff deposes that it is unlikely that she will be able to pursue her claim if required to litigate in the Northern Territory. The plaintiff relies upon an affidavit of Mitchell sworn on 1 May 2003. Mitchell states that the effect of an order to remove the matter to the Northern Territory may well deprive her of a remedy in litigation which is meritorious.
In her affidavit, Mitchell claims, that it would be difficult for her to retain lawyers in Darwin owing to the fact that she could not pay their fees. She further claims that she does not have the financial means to travel and stay in the Northern Territory during the proposed trial. Mitchell states that the defendant, on the other hand, has substantial funds that would allow him to defend this action in South Australia. She also states that the defendant’s attendance in South Australia would not unduly disrupt his business.
Counsel for Mitchell contends that it is the actions of the defendant that have caused her to reside in South Australia and it would be unjust that the matter be removed to the Northern Territory.
Section 5(2)(a) and s 5(2)(b)(ii) of the South Australian Act provides that where a proceeding is pending in this Court and it appears to the Court that it is more appropriate that the proceeding be determined by another court, the Court shall transfer the proceeding to the more appropriate court. In determining that question, the Court is to have regard to whether a substantial part of the relevant proceeding would have been incapable of being instituted in this Court and capable of being instituted in another court. The Court may also have regard to whether the matters for determination are matters arising under or involve questions as to the application of, or interpretation of, a law of another State (in this case the Northern Territory) and are not within the jurisdiction of the South Australian Court, apart from the cross-vesting legislation. Further, the Court should have regard to whether it is in the interests of justice to transfer the matter to the Northern Territory Court.
Section 5(2)(b)(iii) provides that if it appears to the Court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Northern Territory Supreme Court, the Court shall transfer the proceedings to that other court.
The plaintiff contends that s 5(2)(b)(ii) has no application and s 5(2)(b)(iii) is the applicable provision. The defendant contends that both subsections have application and that it is in the interests of justice for the matter to be determined in the Northern Territory.
It is unnecessary for me to determine whether s 5(2)(b)(ii) has application as both parties accept that the issue to be determined is whether it is in the interests of justices and, therefore, whether it is more appropriate that the proceedings be determined in the Northern Territory.
In interpreting the phrase “the interests of justice” I respectfully adopt the observations of Wilcox J in Bourke v State Bank of New South Wales, where he said:
“Under that rubric, as it seems to me, the Court is entitled to consider not only the ability of a particular Court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in ‘the interests of justice’ to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation …
I take this to be a charter for the Court to take the course which appears to it to be more just, interpreting that word widely. However, for an applicant’s choice of forum to be overridden, there must be some objective factor which makes it possible to say that the interests of justice will be better served by transfer than by non-transfer. Where, as here, it is impossible to identify any such factor, the subparagraph has no application.”[5]
[5] (1988) 22 FCR 378 at 394-396
I accept that the matters to which Wilcox J referred in Bourke are matters to which the Court will have regard in determining whether an order should be made.[6]
[6] See Pegasus Leasing Limited v Tieco (International) Pty Ltd and Ors (1991) 61 SASR 195 at 200.
I agree with Wilcox J in Bourke that one of the factors to which the Court is entitled to have regard is the plaintiff’s advantage of having his or her litigation determined in the jurisdiction in which the plaintiff has commenced her action.[7] I respectfully adopt what was said by Rogers AJA in Bankinvest AG v Seabrook and Ors when considering the effect of the cross-vesting legislation:
“One consequence is that the principles of forum non conveniens, applied in circumstances where the competition is between an Australian and a non-Australian Court, have no role to play in the resolution of applications made under the legislation or in its interpretation. Legislation prescribes the criteria whereby such applications are to be determined. The criteria are rather more specific in some respects but in referring to the “interests of justice”, call for considerations of a more general kind than the judicially established rules of forum non conveniens. Professor Crawford has described the phrase “interests of justice” as a “residual forum non conveniens test”: “Developments in Federal Jurisdiction”, University of Sydney Faculty of Law Continuing Legal Education, 1987.”[8]
[7] See Macks v Emanuele (23 January 1998 unreported No. 6523)
[8] (1988) 14 NSWLR 711 at 726
In James Hardie & Co Pty Ltd v Barry & Anor[9], Mason P considered that the plaintiff’s choice of tribunal and the reasons for it, both substantive and procedural, are relevant matters to be taken into account when considering the interests of justice.
[9] (2000) 50 NSWLR 357 [100]
As to the question of whether either party bears the onus of proof, I agree with the views expressed by Mason P in James Hardie, where he said:
“One aspect of Bankinvest which has puzzled later Courts is the statement by Rogers A-JA (with which Street CJ definitely agreed and Kirby P probably agreed) that it is inapt to speak of any onus resting upon the applicant to transfer: see at 726-727. Such a sentiment may be understandable where transfer is ordered on the Court’s own motion. However, like others I find it elusive in the context of a contested proceeding inter partes. If one views the exercise as one of the judicial discretion according to proper principle, then it is natural to regard the applicant for particular relief as carrying at least the persuasive onus: see Bourke (at 395-396); Chapman v Jansen (1990) 100 FLR 66 at 74; Dawson (at 18); Hoddell v Hoddell Pty Ltd [1999] WASC 156 at [18]; Nygh (op cit at 92).
Fortunately, “onus” will seldom if ever be determinative at the end of the day.”[10]
[10] Ibid at 380 [100]
The plaintiff submits that in considering the interests of justice, the Court should have regard to the relative financial ability of the parties to conduct the litigation. The plaintiff states that she has had to borrow monies to issue the proceedings and has no assets of any significant value. She claims that if the matter were removed to the Northern Territory because of her impecuniosity she may well be deprived of the ability to retain lawyers in the Northern Territory and, therefore, to pursue the litigation. The defendant submits that the relevant affluence of the parties is an irrelevant consideration to the issue of the transfer of the matter. I do not agree. In James Hardie and Co Pty Ltd v Barry, Mason P referred to the decision of Lubbe v Cape Plc[11] where the Court determined that the availability of financial assistance, coupled with its non-availability in the more appropriate forum, might exceptionally be a relevant factor to which the Court will have regard.[12]
[11] [2000] 4 All ER Rep 268
[12] Ibid at 378-379
The defendant also submits that in any event the plaintiff has not established that if the matter were to be transferred to the Northern Territory she would be unable to proceed with her claim.
I conclude that the plaintiff has no assets and would find it difficult to retain legal advisers in the Northern Territory. Further, she would incur additional cost in having to instruct solicitors in the Northern Territory, as it would be difficult to obtain detailed instructions from her without the assistance of solicitors in South Australia or, alternatively, her attending in the Northern Territory or her Northern Territory lawyers attending in Adelaide. If the matter was litigated in the Northern Territory, the plaintiff would have to attend there throughout the trial and she would incur substantive expenses in travelling to Darwin and residing there for the duration.
The defendant asserts that all relevant witnesses reside in the Northern Territory. In my view, the two witnesses who will occupy the majority of the Court’s time are the plaintiff and the defendant. The ability of witnesses to travel these days is such that, although some inconvenience and cost will be caused to the defendant, it is not a factor which persuades me to accede to the application. As to the evidence of expert medical witnesses, if there are matters which are in dispute, it is possible today for evidence to be given by video link which, in my view, may be an appropriate way of taking evidence from experts.
As to the valuation evidence, the plaintiff submits that she has instructed valuers in South Australia. She relies upon the affidavit of Trevor Paul Clark, a practising accountant in South Australia, who deposes that because of the nature of the business which is the subject of this litigation, it is unnecessary for a valuer to physically observe the business and a valuation can be made by examination of the financial records of the business. I acknowledge that the defendant may well wish to call expert valuation evidence from experts resident in the Northern Territory. It seems that one of the parties will require their expert valuation witness to travel.
It was submitted by the plaintiff that the defendant’s conduct has caused her to leave the Northern Territory and it is as a result of his conduct that she is impecunious. The defendant denies that his conduct had led to the break down of the relationship and to causing the defendant to move to South Australia. It is not possible on the affidavit material to make any determination about the competing claims. I do not place any weight upon the plaintiff’s submission.
I conclude that the plaintiff had resided in South Australia for some years prior to instituting proceedings. I am not persuaded that unnecessary burdens will be placed upon the defendant if the action were to be litigated in South Australia. I have had regard to the fact that the plaintiff is entitled to conduct the litigation in South Australia, and the fact that her legal advisers have been retained in South Australia and are prepared to continue to act for her, despite her impecuniosity. I am not persuaded that it is in the interests of justice to order that the matter be transferred to the Northern Territory. I dismiss the defendant’s application.
JUDGMENT CITATIONS
LISTED IN ORDEROF APPEARANCE IN JUDGMENT
[1] s 9. The Supreme Court –
(a)may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Commonwealth or a State relating to cross vesting of jurisdiction; and
(b)may hear and determine a proceeding transferred to that court under such a provision”
2 De Facto Relationships Act 1991
s 13 Application for Order for Adjustment
(1) A de facto partner may apply to a court for an order under this Division for the adjustment of interests with respect to the property of the de facto partners or either of them.
(2) ….
s 18 The Order for Adjustment
(1) The order which a court may make under this Division with respect to the property of de facto partners or either of them is such order adjusting the interests of the partners in the property as the court considers just and equitable having regard to -
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the partners to the acquisition, conservation or improvement of any of the property or to the financial resources of the partners or either of them; and
(b) the contributions (including any made in the capacity of homemaker or parent) made by either of the partners to the welfare of the other partner, or to the welfare of the family constituted by the partners and one or more of the following:
(i) ….
(ii) ….
(iii) …
(2) A court may make an order in respect of property whether or not it has declared the title or rights of a de facto partner in respect of the property.
3 Macks v Emanuele (23 January 1998 unreported No. 6523); SAGASCO South-East Inc and Ors v BHP Petroleum Pty Ltd (30 November 1998 unreported No. S6998).
4 Bond Brewing Holdings Ltd v Crawford (1990) 1 WAR 517 at 521-522.
5 (1988) 22 FCR 378 at 394-396
6 See Pegasus Leasing Limited v Tieco (International) Pty Ltd and Ors (1991) 61 SASR 195 at 200.
7 See Macks v Emanuele (23 January 1998 unreported No. 6523)
8 (1988) 14 NSWLR 711 at 726
9 (2000) 50 NSWLR 357 [100]
10 Ibid at 380 [100]
11[2000] 4 All ER Rep 268
12Ibid at 378-379

s 13 Application for Order for Adjustment

(1) A de facto partner may apply to a court for an order under this Division for the adjustment of interests with respect to the property of the de facto partners or either of them.

(2) ….
s 18 The Order for Adjustment

(1) The order which a court may make under this Division with respect to the property of de facto partners or either of them is such order adjusting the interests of the partners in the property as the court considers just and equitable having regard to -
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the partners to the acquisition, conservation or improvement of any of the property or to the financial resources of the partners or either of them; and
(b) the contributions (including any made in the capacity of homemaker or parent) made by either of the partners to the welfare of the other partner, or to the welfare of the family constituted by the partners and one or more of the following:
(i) ….
(ii) ….
(iii) …
(2) A court may make an order in respect of property whether or not it has declared the title or rights of a de facto partner in respect of the property.

[2003] SASC 221

18 July 2003