Pittini v Metcash Food and Grocery Pty Ltd

[2019] NSWSC 80

Supreme Court

New South Wales

Medium Neutral Citation:

Pittini v Metcash Food & Grocery Pty Ltd [2019] NSWSC 80

Hearing dates:

31 January 2019

Date of orders:

31 January 2019

Decision date:

13 February 2019

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

1. Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW), an order that District Court of New South Wales proceedings 2017/00340749 (including the cross-claim in the proceedings) (Subject Proceedings) be transferred to the Supreme Court of New South Wales.

 

2. Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), an order that the Subject Proceedings then be transferred to the Supreme Court of Queensland.

 3.   The costs of the Subject Proceedings to date, and of this Summons, be costs in the cause.

Catchwords:

PRACTICE AND PROCEDURE – transfer of proceedings – application to transfer from the District Court to Supreme Court of New South Wales – application to transfer proceedings to Supreme Court of Queensland – jurisdictional limit

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 140
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5

Category:

Procedural and other rulings

Parties:

Joseph James Pittini (First plaintiff)
Brendt William Munro (Second plaintiff)
Metcash Food & Grocery Pty Ltd (Defendant)

Representation:

Counsel:
Mr A Byrne (Plaintiffs)
Mr P Dunn (Solicitor) (Defendant)

  Solicitors:
Porter Davies Lawyers (Plaintiffs)
Dentons (Defendant)

File Number(s):

2018/379246

Publication restriction:

Nil

Judgment

1. By Summons filed 10 December 2018 the plaintiffs seek orders first to remove to this Court proceedings commenced in November 2017 in the District Court of New South Wales and second, to transfer those proceedings to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act1987 (NSW).

2. The application is consented to by the solicitor for the defendant, Metcash, and the attitude of cooperation and comity between the parties is to be applauded.

3. Nevertheless, I am required pursuant to s 140(1) of the Civil Procedure Act2005 (NSW) to first consider whether it is appropriate that the transfer of those proceedings should take place and second, whether s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act is satisfied, before I transfer these proceedings to Queensland.

4. The background to the proceedings is that Metcash had a number of agreements with IGA stores in various places including in Manly, Queensland. A dispute arose relating to a loan agreement between Metcash and the plaintiffs.

5. Proceedings were commenced in the District Court of NSW by Metcash seeking to enforce the loan agreement. A Defence was filed in January 2018 which contained a number of matters of content and complexity. A Cross-Claim was also filed on the same date seeking damages with interest under the Australian Consumer Law. A Reply was filed in June 2018, and a Defence to the Cross-Claim in July 2018.

6. The affidavit Rodney Mark Lawson sworn 7 December 2018 and read in support of the motion outlines this history of the District Court proceedings. It states that Metcash has served its evidence and there is currently no timetable for service of other evidence pending the determination of this application.

7. I have been informed and accept that in the process of preparing evidence in reply, certain matters came to the attention of the legal representatives for the applicant plaintiffs and it was determined that the scope of the relief to be sought by cross-claim had expanded and will involve sums of up to $3.3 million.

Legislation: s 140 Civil Procedure Act

8. Section 140 of the Civil Procedure Act provides that the Supreme Court may of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that proceeding, including any cross-claim in the proceedings, be transferred to the Supreme Court.

9. It is appropriate to transfer the proceedings to this Court given the potential value of the cross-claim and the fact that it exceeds the jurisdiction of the District Court of NSW. No criticism ought to be levelled at Metcash for commencing proceedings in the District Court of NSW as it was not until the parameters of the cross-claim and its value were explored that it became evident that the sums concerned would exceed the jurisdiction of the District Court of NSW.

Cross-vesting

10. In respect of the question of transfer of proceedings the Jurisdiction of Courts (Cross-Vesting) Act, s 5(2) provides relevantly:

5   Transfer of proceedings

…

(2) 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:

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court,

(ii) having regard to:

(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory,

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C) the interests of justice,

it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or

(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.

11. The issue I have to consider is in short, whether it is more appropriate that the proceedings be determined by another Supreme Court having regard to the interests of justice.

12. Having considered the matters raised in the affidavit of Mr Lawson, and given the consent indicated by Mr Dunn who appeared on behalf of Metcash, as well as the matters raised in oral submissions detailed below, I am of the view that Queensland is the more appropriate forum for the determination of these proceedings.

13. In making this decision I have had regard to the interests of justice including the attitude of the parties and their consent. Other factors which have influenced me significantly are that the plaintiffs are Queensland-based and that witnesses proposed to be called reside in Queensland. There is a need for issue of subpoenas for business records that are located in Queensland; one of the primary contracts that would be subject to detailed analysis in these proceedings includes a “non-exclusive jurisdiction” or “Court clause” indicating that any dispute ought to be dealt with in Queensland, and, importantly the experts retained in the proceedings will need to have a view of the premises and areas surrounding it as this is relevant to issues in the cross-claims. Not irrelevant, but a less persuasive factor, is that the solicitors acting on behalf of the plaintiffs are based in Queensland, and the solicitors for the defendant have an office in Queensland.

14. In the circumstances I made the following orders by and with the consent of the parties:

1. Pursuant to s 140(1) of the Civil Procedure Act2005 (NSW), an order that District Court of New South Wales proceedings 2017/00340749 (including the cross-claim in the proceedings) (Subject Proceedings) be transferred to the Supreme Court of New South Wales.

2. Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act1987 (NSW), an order that the Subject Proceedings then be transferred to the Supreme Court of Queensland.

3. The costs of the Subject Proceedings to date, and of this Summons, be costs in the cause.

**********

Decision last updated: 13 February 2019