Paynes Find Gold Limited v Ferrier

[2014] NSWSC 1945

Supreme Court

New South Wales

Medium Neutral Citation:	Paynes Find Gold Limited v Ferrier [2014] NSWSC 1945
Hearing dates:	9 December 2014
Date of orders:	09 December 2014
Decision date:	09 December 2014
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	The application to have the proceedings in the District Court removed to Supreme Court of New South Wales and to have the proceedings then transferred to the Supreme Court of Western Australia is refused.
Catchwords:	CROSS-VESTING – application to have proceedings transferred to another State – delay in having application determined due to error on the part of defendant applicant – consequent inconvenience to plaintiff
Legislation Cited:	Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ss 5, 8
Category:	Procedural and other rulings
Parties:	Paynes Find Gold Limited ACN 141 450 624 (Plaintiff) Mark Ferrier (Defendant)
Representation:	Counsel: JC Giles (Plaintiff) Defendant self represented Solicitors: K&L Gates (Plaintiff) Defendant self represented
File Number(s):	2014/295842
Publication restriction:	None

Judgment

1. HER HONOUR: This is an application to have proceedings in the District Court removed to this Court and to have the proceedings then transferred to the Supreme Court of Western Australia, where it is anticipated there will be a further application to have the proceedings remitted to the District Court of that State. The application is made by the defendant in the District Court proceedings.

2. The plaintiff in the District Court proceedings is Mr Mark Ferrier. He commenced his action in the District Court by Statement of Claim filed 19 June 2014. The claim, pleaded with commendable simplicity, alleges that he entered into an oral agreement with the defendant, a publicly listed mine exploration company, whereby it was agreed that he would "make arrangements for the assaying of the tailing of gold deposits" on the site where the defendant company holds twenty-eight tenements.

3. The agreement is alleged to have been an oral agreement entered into between Mr Ferrier and three identified persons on behalf of the defendant. Mr Ferrier alleges that it was a term of the agreement that the proceeds of the gold extracted from those tailings would be split 70 per cent to him and 30 per cent to the defendant company. It is alleged that the defendant breached the agreement "by preventing the plaintiff from proceeding to process the tailings".

4. The tenements in question are in the State of Western Australia and each of the three persons with whom the plaintiff is alleged to have entered into the oral agreement resides in that State. The defendant, in support of the application, also submits that other directors of the defendant company may be witnesses "as they may be expected to have known of the agreement if made". As indicated during argument, I am not persuaded that any of those persons would be able to give admissible evidence in the proceedings.

5. In all the circumstances, the different connections with each of the two jurisdictions are unusually narrow. Ordinarily, when applications of this kind are made, a whole host of different considerations arises, but here the principal concern appears to be the fact that one witness on behalf of the plaintiff, that is the plaintiff himself, lives in the State of New South Wales whereas three witnesses on behalf of the defendant company live in the State of Western Australia.

6. The defendant made a prompt application to have the proceedings transferred to Western Australia and Mr Ferrier promptly agreed to that application. Unfortunately, however, it was mistakenly filed in the District Court and indeed a Registrar of the Court made an order by consent.

7. The consent order made on 15 July 2014 in the District Court was in the following terms:

“The proceedings be transferred to the Perth Registry of the District Court of Western Australia.”

8. In fact, as the Registrar subsequently recognised, there was no power to make an order in those terms. The uniform legislation governing the transfer of proceedings between jurisdictions in this country requires that proceedings in a court other than the Supreme Court first be removed to a Supreme Court for transfer to the Supreme Court of another State, then to be remitted to the District Court of the relevant State.

9. The exchange of correspondence during the course of which the error was identified took a period of some months. In the intervening period, Mr Ferrier's circumstances changed and he now opposes the transfer of the proceedings to Western Australia. Principally among his reasons for opposing the transfer is the fact that he is now, for personal reasons, substantially committed to physically remaining within the State of New South Wales. In addition, the solicitor he initially retained to act for him in the proceedings has filed a notice of ceasing to act. He has retained the services of another solicitor, Mr Kalantzis, in other proceedings, and Mr Kalantzis evidently assisted him to address the unexplained delay in the District Court following the making of the consent order, ultimately resulting in the identification of the error and the defendant's present application.

10. Mr Ferrier has informed me from the bar table that if the proceedings remain in New South Wales, Mr Kalantzis has indicated a preparedness to accept instructions in the proceedings on a speculative basis. In the meantime, Mr Ferrier owes Mr Kalantzis a sum of money on account of the fees incurred in sorting out the error in the District Court. Further, as Mr Ferrier has ably demonstrated this morning, he has the capacity to act for himself in the proceedings and may do so for a short period at least until his relationship with Mr Kalantzis in the proceedings is formalised.

11. The proceedings are presently listed for directions before a Judicial Registrar in the District Court tomorrow.

12. Section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) may be regarded principally as a facultative provision in aid of s 5. Section 8 makes plain that where it appears appropriate for proceedings in another court within this jurisdiction, such as the District Court, to be transferred to the District Court of another State, the appropriate mechanism is for this Court first to pluck the proceedings out of the District Court, then to transfer them to the Supreme Court of the other State and for that court then to make the order remitting the proceedings to the District Court.

13. The substantive provision requiring consideration in this case is s 5, which relevantly provides that this Court must or shall transfer the relevant proceedings to the Supreme Court of Western Australia if it appears that it is "otherwise in the interests of justice".

14. There is a considerable body of jurisprudence as to the proper application of that provision but, as I have already indicated, the issue in the present case boils down to one of relative simplicity. It is principally that three witnesses are likely to have to fly to Sydney if the proceedings remain here, whereas Mr Ferrier is likely to have to fly to Perth if the proceedings are transferred to Western Australia.

15. Had the application first made promptly after the commencement of the proceedings been dealt with promptly and the error of filing the application in the wrong place not been made, all of that might have occurred with relative inconvenience to all. In my view, however, the position has now been reached where it will visit potential inconvenience and unnecessary cost, not to mention delay, on Mr Ferrier if the order is made at this stage. Having regard to the time of year it seems likely, and certainly a substantial risk, that if I make the order today there will still be some weeks, if not months, before the proceedings are remitted to the District Court in Western Australia. Conversely, if the order is not made, Mr Ferrier's claim can be the subject of directions made tomorrow towards an early hearing date.

16. If the proceedings remain here, Mr Ferrier will be able to represent himself for at least part of them, whereas if they are transferred he will undoubtedly have to retain the services of a lawyer in that State. If the proceedings remain here, he is likely to be able to obtain advantages in his negotiations with Mr Kalantzis, whom he has retained in other matters, whereas it is tolerably clear that if the proceedings are transferred, Mr Kalantzis will not remain involved in them on Mr Ferrier's behalf.

17. In all of the circumstances, principally as a result of the delay that has occurred following the mistaken application in the District Court, I am not persuaded that it is in the interests of justice that the relevant proceedings be determined by the Supreme Court of another State or Territory. Accordingly, the application is refused.

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Decision last updated: 12 March 2015