Open Universities Australia Pty Ltd v The TAFE Commission
[2017] VSC 617
•4 OCTOBER 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
S ECI 2017 00159
| OPEN UNIVERSITIES AUSTRALIA PTY LTD | Plaintiff |
| v | |
| THE TAFE COMMISSION TRADING AS “TAFE NSW – SYDNEY INSTITUTE” (ABN 98 375 029 590) | Defendant |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 4 OCTOBER 2017 |
DATE OF RULING: | 4 OCTOBER 2017 |
CASE MAY BE CITED AS: | OPEN UNIVERSITIES AUSTRALIA PTY LTD v THE TAFE COMMISSION |
MEDIUM NEUTRAL CITATION: | [2017] VSC 617 |
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PRACTICE AND PROCEDURE — Cross-vesting application — Interests of justice — Application to transfer proceedings from the Supreme Court of Victoria to the Supreme Court of New South Wales — Whether New South Wales is more appropriate forum — Modest sum in dispute — Application dismissed — Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), s 5(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Shelly | Page Seager Lawyers |
| For the Defendant | Mr R Heath | Clayton Utz |
HIS HONOUR:
A. Introduction
I have before me a cross-vesting application pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (“the Act”) made by the defendant, the TAFE Commission (trading as “TAFE NSW – Sydney Institute”) (“the TAFE Commission”).
Section 5(2) of the Act provides relevantly:
Where:
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and
(b) it appears to the first court that:
…
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory;
the first court shall transfer the relevant proceeding to that other Supreme Court.
There is no onus on the moving party in an application such as this.[1] The role of the court is to ensure that the case is heard in the forum in which it appears it is in the interests of justice for it to be heard,[2] the alternative forum (at least initially)[3] in this case being the Supreme Court of New South Wales.
[1]BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 421-423 [14]-[19] (Gleeson CJ, McHugh and Heydon JJ), 434-435 [62]-[63], 437 [71] (Gummow J, with whom Hayne J agreed).
[2]Certain other matters identified in s 5(2) are not relevant in the circumstances of this case.
[3]See par 25 below.
The context in which this application is made is somewhat unusual. The court has been provided with limited information as to what are the real issues between the parties. In short, what appears to be a relatively straightforward application has been made more difficult to determine by reason of the dearth of evidence with respect to the relevant issues.
B. Background
On 27 October 2015, the plaintiff, Open Universities Australia Pty Ltd (“Open Universities”), and the TAFE Commission entered into an agreement pursuant to which Open Universities was to provide certain services to the TAFE Commission. These services included the provision of learning management systems and a learning analytics solution. There is no evidence as to who was involved in negotiating the agreement or where the negotiations took place.
The agreement is in writing. Its covering page suggests it was prepared by a firm of solicitors with an office in Melbourne. It contains the following clause:
24.9Governing law and jurisdiction. The law of the state of New South Wales, Australia, governs this agreement and each Statement of Work. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
As is self-evident from the terms of this clause, this non-exclusive jurisdiction specified is not confined to the courts in New South Wales, but includes courts located throughout Australia, albeit it does not include state courts.
Although clause 24.9 is not expressly referred to in clause 19.4, which provides a non-exhaustive list of provisions of the agreement which survive termination, there can be little doubt that if the agreement has been terminated (which was asserted in the TAFE Commission’s submissions, but about which there is no evidence) clause 24.9 would survive termination.
A writ and statement of claim was filed on 7 July 2017. It is a very simple claim. It alleges that work was performed in accordance with the agreement, for which invoices were rendered from 30 November 2015 to 1 August 2016, totalling $1,587,877.50. Of the amount invoiced, it is alleged the TAFE Commission has paid $1,043,491.23, leaving an amount outstanding of $544,386.27.
On its face, it is a debt claim for a relatively modest sum. As a result, on 25 July 2017, Derham AsJ issued a notice of referral under Part 3 of the Courts (Case Transfer) Act 1991 (Vic) (“the Notice”), noting the proceeding was under consideration for transfer to the County Court of Victoria.[4] The Notice invited submissions by 23 August 2017 in this regard.[5]
[4]This notice had been preceded by communications from the Commercial Court Registry as to the likely transfer.
[5]Rather than provide submissions, the TAFE Commission decided to file a summons to bring this application.
On 3 August 2017, the TAFE Commission filed an appearance. Despite the lapse of over 2 months, no defence has been filed. Accordingly, the issues between the parties have not been identified. Further, the affidavits filed on this application shed very little light on what are likely to be the issues if this matter goes to trial.
C. The basis of the application
I refer to the affidavit in support of the transfer, filed on 5 September 2017 on behalf of the TAFE Commission. Save for referring to clause 24.9 and the nature of the services provided by Open Universities, the affidavit says nothing about what the issues at trial are likely to be.
Further, the affidavit of the TAFE Commission’s solicitor asserts, and I quote, "[i]f the matter proceeds to hearing, I anticipate, based on present knowledge, that all of the [TAFE Commission’s] witnesses will be based in Sydney”. The affidavit does not identify the knowledge referred to. It says nothing about the number of witnesses or the evidence that is likely to be adduced.
Furthermore, the evidence, such as it is, cannot be safely relied upon. In submissions filed yesterday, it was stated that, “[s]ubject to the defences which are prosecuted, it is more likely than not that most of the [TAFE Commission’s] potential witnesses reside in [New South Wales]”. Self-evidently, the sworn evidence is inconsistent with the considered view of counsel. Moreover, even on the position adopted today, again, there is complete silence about the number of witnesses involved and the nature of the evidence to be given.
In summary, the TAFE Commission relies upon the following considerations:
(1) The terms of clause 24.9 of the agreement.
(2) The usually non-determinative factor of where witnesses are located.[6]
[6]Bioag Pty Ltd v Hickey [2007] NSWSC 296, [14] (Brereton J).
(3) To the extent the witnesses’ location is to be taken into account, the bald assertion that the location of “most” of its witnesses are in New South Wales (without any further detail).
(4) The TAFE Commission itself is located in New South Wales.
Open Universities’ evidence also sheds little light on the issues at hand. It refers to “most” of its witnesses being in Melbourne, again without any detail as to the number of witnesses or the nature of the evidence to be led. It observes that Open Universities is based in Melbourne. It also asserts, without giving any detail, that “most” of the work was done in Melbourne. Open Universities also relies on the fact that its solicitors are based in Melbourne and that they have no Sydney office. This is to be contrasted with the TAFE Commission’s solicitors, who have offices in both Sydney and Melbourne.
Of some significance is that the affidavit in opposition has been affirmed by an officer of Open Universities, namely, its general counsel and company secretary. He has given uncontroverted evidence that he does not know what the issues in this proceeding will be. Although the appearance was filed over 2 months ago, as I have already noted,[7] the TAFE Commission has failed to file a defence, in breach of rule 14.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). When this was raised with counsel at the hearing, the explanation from the bar table for the absence of a defence was that it was decided to cease work until this application was determined.
[7]See par 11 above.
This is hardly a satisfactory explanation and may be difficult to reconcile with the overarching obligations under the Civil Procedure Act 2010 (Vic), including the requirement of the parties to conduct the dispute in an efficient and timely manner.[8]
[8]See s 7.
During the course of the application, I was referred to other cases dealing with non-exclusive jurisdiction clauses and their relevance to applications such as this.[9] There could be no doubt that such a clause, in this case clause 24.9, is a material factor in deciding which jurisdiction ought to hear and determine a proceeding. Each case must depend on the particular language of the non-exclusive clause, viewed in the context of the particular circumstances of the case as presented to the “first court”[10] at the time the application is made.[11]
[9]Patrick Badges Pty Ltd v Commonwealth [2002] NSWSC 221, [14] (Howie J); Asciano Services Pty Ltd v Australian Rail Track Corp Ltd [2008] NSWSC 652, [18]–[19] (Palmer J); Taurus Funds Management Pty Ltd v Aurox [2010] NSWSC 1223, [36]–[38] (Einstein J).
[10]See par 2 above.
[11]Patrick Badges Pty Ltd v The Commonwealth [2002] NSWSC 221, [17]-[19] (Howie J).
D. Ruling
Dealing with the matter as best as I am able, given the limited evidence before the court, it is my view that the proceeding should remain in this jurisdiction.
It is a very simple claim which has been properly commenced, and should be able to be dealt with efficiently in this jurisdiction. If the proceeding were transferred, there would be inconvenience and cost to Open Universities in having to brief new solicitors in Sydney which would otherwise not be suffered or incurred. There is no apparent increase in costs for the TAFE Commission, save for the possibility of 1 or more witnesses[12] to travel from Sydney to Melbourne, which is a relatively convenient and inexpensive course in this day and age.
[12]On the state of the evidence before the court, it is not clear if there will be more than 1 witness required to travel.
Based on the limited information available, I anticipate it is quite possible that Open Universities’ witnesses will be the key witnesses in the case, if they are required to justify the work they have performed. It seems these witnesses are based in Melbourne. In any event, there is nothing to suggest any real inconvenience for this matter to remain in Victoria. On the contrary, it appears to be the most convenient forum.
I have also taken into account the language of clause 24.9. It plainly contemplates proceedings being commenced and conducted outside New South Wales, including (as it is non-exclusive) in State courts. The language used in this clause is perhaps not as strong as the non-exclusive clauses referred to in the authorities the court was taken to.[13] In any event, for the reasons already stated, it is my view that the matter should remain here in the interests of justice.
[13]Cf, for example, Taurus Funds Management Pty Ltd v Aurox [2010] NSWSC 1223, [34]–[35] (Einstein J).
E. Other matters
That said, and although not determinative, I further note a factor in favour of Open Universities. The claim is a small one. It is anticipated it will be transferred to the County Court of Victoria if it remains in this jurisdiction. This process is already underway, and can take place administratively without any further substantial cost to the parties. If this proceeding were to be transferred to New South Wales, this court would only have jurisdiction pursuant to the Act to transfer it to the Supreme Court of New South Wales.[14]
[14]See par 2 above.
The parties accept that, if the proceeding were to be heard in New South Wales, it ought to be heard in the District Court of New South Wales, given the amount of money involved. This would require a further application to be made to the Supreme Court of New South Wales after any transfer,[15] which is likely to add to the costs associated with the proceeding and, perhaps, also cause delay.
[15]Civil Procedure Act 2005 (NSW) s 146(1).
For completeness, I note Open Universities also contended that the word “determined” within s 5(2) of the Act should be understood as referring to a final determination, such that given the parties’ concession as to the District Court of New South Wales being the appropriate forum (post-transfer), this court could not be satisfied it was in the interests of justice for the proceeding to be “determined” by the Supreme Court of New South Wales. In light of the reasons set out above, it is unnecessary to consider this submission.
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