Re Quirky Mama Productions Pty Ltd
[2021] VSC 514
•20 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2021 02473
IN THE MATTER OF QUIRKY MAMA PRODUCTIONS PTY LTD (ACN 624 109 774) (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
BETWEEN:
| IMMORTAL IMAGINATION MOTION PICTURES LIMITED [NZ COMPANY NO.: 6751693] | Plaintiff |
| v | |
| TERRENCE JOHN ROSE & ORS | First Defendant |
| DAVID MICHAEL STIMPSON | Second Defendant |
| STEPHEN DIXON | Third Defendant |
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JUDGE: | Connock J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers. Submissions/materials received 19 and 20 August 2021 |
DATE OF JUDGMENT: | 20 August 2021 |
CASE MAY BE CITED AS: | Re Quirky Mama Productions Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 514 |
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PRACTICE AND PROCEDURE — Jurisdiction — Application by defendants to transfer proceedings to the Supreme Court of Queensland — Corporations Act 2001 (Cth) ss 1337H, 1337H(2) and 1337L — Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) — Relevant factors — Interests of justice — Transfer order sought by consent of all parties — Events in Queensland — Law covering the transaction — Conduct of defendants in Queensland— Defendants based in Queensland — Directors of company based in Queensland — Company’s principle place of business in Queensland — Relevance of the impact of COVID-19 restrictions on in-person court hearings — Proceeding transferred.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | N/A | Kahns Lawyers |
| For the Defendants | N/A | Mills Oakley |
HIS HONOUR:
Introduction and summary
Upon the defendants’ application filed on 19 August 2021 the issue for determination is whether this proceeding should remain in this court or be transferred to the Supreme Court of Queensland pursuant to s 1337H(2) of the Corporations Act 2001 (Cth) (Act), alternatively s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (Cross-vesting Act).
The defendants relied upon the affidavit of their solicitor, Ms Galea, affirmed 19 August 2021, the affidavit of the plaintiff’s director, Mr Wolters, affirmed 14 July 2021 and filed in support of the originating process in this proceeding, and the defendants’ written outline of submissions filed 19 August 2021.
As things transpired, all of the parties to the proceeding consented to an order being made transferring the proceeding to the Supreme Court of Queensland. However, this consent does not relieve the court of the judicial function it is required to undertake pursuant to s 1337H(2) of the Act, or alter the nature or extent of that function.[1]
[1]Similar observations have been made in other cases including, for example, Webster (as trustee for the Elcar Pty Ltd Super Fund Trust) v Murray Goulburn Co-Operative Co Ltd[2017] VSC 249, [15] (Croft J).
For the reasons that follow I have determined that:
(a) section 1337H of the Act applies;
(b) it appears that, having regard to the interests of justice, it is more appropriate for this proceeding to be determined by the Supreme Court of Queensland;
(c) it is appropriate to exercise the Court’s discretion under s 1337H(2) of the Act by making an order transferring this proceeding to the Supreme Court of Queensland; and
(d) it is not necessary to address the defendants’ alternative application under s 5(2) of the Cross-vesting Act, although by reason of the operation of s 3A of that Act, the Cross-vesting Act does not apply to this proceeding in any event.
Transfer of proceedings under s 1337H of the Act
Sections 1337H (1) and (2) provide as follows:
(1)This section applies to a proceeding (the relevant proceeding) in a court (the transferor court) if:
(a)the relevant proceeding is:
(i)a proceeding with respect to a civil matter arising under the Corporations legislation; or
(ii)a subsection 1337B(3) proceeding; and
(b)the transferor court is:
(i)the Federal court; or
(ii)a State or Territory Supreme Court.
(2)Subject to subsections (3), (4) and (5), if it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for:
(a)the relevant proceeding; or
(b)an application in the relevant proceeding;
to be determined by another court that has jurisdiction in the matters for determination in the relevant proceeding or application, the transferor court may transfer the relevant proceeding or application to that other court.
…
When deciding whether to transfer a proceeding to another court pursuant to s 1337H of the Act, s 1337L of the Act mandates that the Court have regard to:
(a) the principal place of business of any body corporate concerned in the proceeding or application;
(b) the place or places where the events that are the subject of the proceeding or application took place; and
(c) the other courts that have jurisdiction to deal with the proceeding or application.
Principles and observations regarding the determination of transfer applications made pursuant to s 1337H of the Act have been addressed in various authorities and are not relevantly controversial. Two cases in this court where the principles relating to s 1337H of the Act were recently addressed are Kadac Proprietary Limited v Complete Health Products Pty Ltd (Kadac)[2] and Webster (as trustee for the Elcar Pty Ltd Super Fund Trust) v Murray Goulburn Co-Operative Co Ltd (Webster).[3]
[2][2015] VSC 613 (Kadac).
[3][2017] VSC 249 (Webster).
As observed by Croft J in Webster, the overarching question to be answered in an application for transfer under either s 1337H(2) of the Act, or s 5(2)(b)(iii) of the Cross-vesting Act, is whether the transfer is more appropriate having regard to the interests of justice. The issues arising under each section are broadly similar, as was addressed by Debelle J in Re D store Ltd; Dwyer v Hindal Corporate Pty Ltd (Dwyer).[4] It was also there observed that where the interests of justice threshold criterion is satisfied, s 1337H(2) of the Act provides the court with a discretion whether to transfer the proceeding, whereas s 5(2) of the Cross-vesting Act requires the court to transfer the proceeding. That said, and as others have observed, it is not easy to conceive of cases in the abstract where the discretion under s 1337H(2) might be exercised against the transfer of a proceeding when, in order to enliven the exercise of the discretion, it has first been determined that the interests of justice favour the transfer.
[4](2005) 52 ACSR 335, [13]–[14].
In Kadac, Sifris J addressed the principles relevant to s 1337H of the Act in part as follows, whilst also drawing upon the observations of Martin CJ in Resource Equities Ltd (Subject to Deed of Company Management) v Carr:[5]
[5][2007] WASC 246 (Resource Equities).
9.The principles to be applied in determining an application under s 1337H(2), which were not in dispute, are the same as those that apply to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), subject to one difference. Under s 5(2)(b)(iii), the transferor court must transfer the proceedings if it is satisfied that another court is the more appropriate court whereas under s 1337H(2) even if another court is the more appropriate venue, the transferor court retains a discretion whether to transfer the proceedings.[6]
[6]Dwyer v Hindal Corporate Pty Ltd (2005) 52 ACSR 335, [13]–[14] (Debelle J).
…
11.The threshold question posed by s 1337H(2) is whether the Queensland Supreme Court is more appropriate than this Court for the determination of the proceeding, having regard to the interests of justice.[7]
[7]Ibid, [12].
12.In considering that question, the following principles are to be applied:
(a)It is not necessary that the transferor court be a ‘clearly inappropriate’ forum but only that, in the interests of justice, the transferee court is ‘more appropriate’;[8]
[8]BHP Billiton Limited v Schultz (2004) 221 CLR 400, [7]–[11] (Gleeson CJ, McHugh and Heydon JJ) (Schultz); Irwin v State of Queensland [2011] VSC 291, [14(b)].
(b)Which court is more appropriate to hear and determine the substantive dispute is a ‘nuts and bolts’ management decision;[9]
[9]Schultz, [13]; Irwin v State of Queensland [2011] VSC 291, [14(g)].
(c)The most appropriate court is the natural forum, as determined by factors connecting the proceeding to that forum including matters of convenience and expense, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction;[10]
[10]Schultz, [18]–[20].
(d)The list of connecting factors is impossible to state exhaustively and the weight to be given to any particular factor will vary from case to case;[11]
[11]Schultz, [18].
13.Section 1337L requires the Court, in deciding whether to transfer the proceeding, to have regard to (i) the principal place of business of any body corporate concerned in the proceeding or application; (ii) the place or places where the events that are the subject of the proceeding or application took place; and (iii) the other courts that have jurisdiction to deal with the proceeding or application.
14.The phrase, ‘interests of justice’ is to be read widely,[12] and includes the availability of procedures with the capacity to assist both parties in the efficient and economical resolution of disputes and therefore serve the public interest.[13]
15.In Resource Equities Ltd (Subject to Deed of Company Management) v Carr,[14] Martin CJ regarded as critical the fact that much of the evidence was to come from the defendants and that the plaintiff’s evidence would probably be restricted to the tender of documents. The Chief Justice transferred the case to the Supreme Court of New South Wales, the jurisdiction in which the defendants resided. His Honour said —
The point made by the applicants for transfer in this case, which I accept, is that it will be a rare case in which the difference between the mandatory and the discretionary language will have any practical application, because it is difficult to conceive of a circumstance in which having concluded that it is in the interest of justice to transfer a case it would be appropriate to nevertheless exercise a discretion to decline transfer.
…
The principles that govern applications of this kind have recently been enunciated conveniently by the High Court in the case of BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 211 ALR 523; (2004) 221 CLR 400. I will adopt without restating the principles enunciated in that case as a guide to me in the determination of these transfer applications. Succinctly put, that case establishes that the decision to be taken under transfer application is a ‘nuts and bolts’ management decision as to which court in the pursuit of the interests of justice is the more appropriate forum to hear and determine the substantive dispute.
That decision is to be made as much as a matter of impression rather than, as in the words of Street CJ in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714, to be overly ‘encumbered by an encrustation of judge-made pronouncements of principles’.
…
The authorities also establish that applications for transfer of this kind are not to be approached on the basis that the forum in which the proceedings are commenced has any significance in terms of creating an onus on the other party to show that some other forum is manifestly more convenient. Rather, the application to transfer is to be approached without a presumption that the forum in which the proceedings are commenced is presumptively the more appropriate and that therefore there is some onus to be overcome in order to sustain the applications for transfer. [15]
[12]Bourke v State Bank of New South Wales (1988) 22 FCR 378, 394 (Wilcox J).
[13]Schultz, [21]; James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357, [15]–[20] (Spigelman CJ) and [112] (Mason JA).
[14][2007] WASC 246 (Resource Equities).
[15]Ibid, [5]–[55].
When making a transfer order pursuant to s 1337H(2) of the Act in Webster, Croft J observed that the relevant principles under the cross-vesting legislation were considered by the High Court in BHP Billiton v Schultz[16] and, on the basis of that decision and subsequent decisions in this court,[17] Robson J had provided a comprehensive summary of these principles in Irwin v State of Queensland[18] — which were more recently addressed again in Smartscaff Pty Ltd v Capital Scaffolding Pty Ltd (No 1).[19] It is convenient to draw upon parts of Robson J’s helpful summary in Irwin:[20]
[16](2004) 221 CLR 400.
[17]These cases include: Ewins v BHP Billiton Limited [2005] VSC 4; Hall v Australian Finance Direct Ltd [2005] VSC 306; Slater & Gordon Pty Ltd v Porteus [2005] VSC 398; McLeod v Munro [2005] VSC 375; Simpson v Francke [2006] VSC 200; Holt v Rorehan [2006] VSC 148; Eden v Amaca Pty Ltd [2007] VSC 374; Kellow v Irish Murphy’s Pty Ltd [2010] VSC 239; Lloyd v Riverland Regional Health Services Inc [2010] VSC 350; and Irwin v State of Queensland.
[18][2011] VSC 291 (Irwin).
[19][2017] VSC 606 (‘Smartscaff’).
[20][2011] VSC 291, [14].
14. The relevant principles may be summarised as:
(a)The Act requires that the [first] court should exercise the power of transfer whenever “it appears” that it is in the interests of justice that it should be exercised.[21]
[21]Schultz at [14] per Gleeson CJ, McHugh and Heydon JJ and at [17] per Gummow J (with whom Hayne J agreed); and Ewins [16].
(b)It is not necessary that it should appear that the first court is a “clearly inappropriate” forum.[22] It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.[23]
[22]The reference to a “clearly inappropriate” forum is the test adopted by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 that should be applied in an application to stay a proceedings on the grounds of forum non conveniens. In Schultz at [7]-[11] Gleeson CJ, McHugh and Heydon JJ distinguish between the test to be applied in such an application and the test that should be applied in an application under the Jurisdiction of Courts (Cross-vesting) Act 1987.
[23]Ibid.
(c)The Court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.[24]
[24]Schultz at [14] per Gleeson CJ, McHugh and Heydon JJ when distinguishing between an application for a stay on the ground of forum non conveniens and an application under the Act.
(d)The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.[25]
[25]Schultz at [15] per Gleeson CJ, McHugh and Heydon JJ.
(e)The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.[26]
[26]Schultz at [62]-[63] per Gummow J (with whom Hayne J agreed); Ewins at [17].
(f)It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.[27] Rather the jurisdiction must be exercised when “it appears” to the court that “it is in the interests of justice” that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued.[28] Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.
[27]Schultz at [71] per Gummow J (with whom Hayne J agreed).
[28]Schultz at [71] per Gummow J (with whom Hayne J agreed); Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Rogers AJA at 727 (Bankinvest). In Ewins at [23] Gillard J held that although persuasive it was not adopted by the majority of the High Court. He said he was not prepared to accept that it represents the law.
(g)The court should adopt what has been described as a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.[29]
[29]Bankinvest at 714 per Street CJ; approved in Schultz at [13] per Gleeson CJ, McHugh and Heydon JJ.
(h)The appropriate court is the natural forum as determined by connecting factors to that forum.[30]
[30]Schultz at [10] per Gleeson CJ, McHugh and Heydon JJ; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 the House of Lords (Spiliada); Ewins at [31].
(i)Relevant connecting factors include matters of convenience and expense[31] such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.[32]
[31]Preamble to the Act “Whereas inconvenience and expense have ...”.
[32]Schultz at [18]-[19] per Gleeson CJ, McHugh and Heydon JJ.
(j)In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.[33]
[33]Schultz at [19] per Gleeson CJ, McHugh and Heydon JJ.
(k)If the action is between two individuals, and the plaintiff resides in one area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although it would ordinarily be the residence of the defendant that is important to establish jurisdiction.[34]
[34]Ibid.
(l)Factors which may be relevant to a tortious action are:[35]
[35]Ewins at [29].
(i)The place where the wrong occurred.
(ii)Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.
(iii)The convenience of the parties and witnesses. However in this day and age this factor may not carry substantial weight because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because the provision of evidence by audio visual link.
(iv)The law governing the proceeding.
(v)The experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with a particular evidentiary and procedural rules hearing particular types of cases.
(vi)The condition of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.[36]
[36]Ewins at [29].
(m)As a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort.[37] [25] Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.[38]
(n)A relevant factor is whether the coincidence of the lex fori[39] and the lex loci delicti[40] will avoid debates concerning substantive and procedural law.[41]
(o)The plaintiff’s choice of forum by itself is not a relevant connecting factor.[42]
(p)Each case depends on its own particular facts.[43]
(q)The list of connecting factors is impossible to state exhaustively. Equally the weight to be given to each factor must vary from case to case.[44]
[37]Ewins at [33].
[38]James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 557 (James Hardie) at 361 per Spigelman CJ.
[39]Law of the forum.
[40]Law of the place of the wrong.
[41]Schultz at 262 per Gummow J (with whom Hayne J agreed).
[42]Schultz; Ewins at [12]. Gummow J said at [77] in Schultz “The phrase “otherwise in the interests of justice” in sub para (iii) of s 5(2)(b) of the Cross-vesting Act requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff.”
[43]Eden at [10].
[44]Ewins at [38].
I refer also to the observations of Debelle J in Dwyer[45] regarding the meaning of the expression ‘interests of justice’, including the need to interpret the expression broadly.[46]
[45](2005) 52 ACSR 335 [16]–[17].
[46]These observations were also referred to (and set out) by Croft J in Webster [2017] VSC 249.
Application to the facts and disposition
Section 1337H of the Act applies; the Cross-vesting Act does not
Section 1337H applies because, as required by s 1337H(1), this court is a State Supreme Court and the proceeding is a proceeding regarding a civil matter arising under the Corporations Legislation. This is because in this proceeding the plaintiff seeks declarations and orders pursuant to s 443A of the Act and s 90-10 of the Insolvency Practice Schedule (and other relief) in relation to the civil liability of the defendants for goods and services said to have been provided to Quirky Mama Productions Pty Ltd (Company) during the period that it was in administration and during the period that it was subject to a deed of company arrangement (DOCA). The first defendant and the second defendant are said to have been the administrators of the Company from 19 August 2020 until 7 December 2020, when they became the deed administrators of the DOCA. The third defendant is said to have been the administrator of the Company between 7 and 19 August 2020.
I add for completeness that, by reason of the operation of s 3A of the Cross-vesting Act, that Act does not apply. This is because s 3A provides that the Cross-vesting Act does not apply to matters to which div 1 of pt 9.6A of the Act ‘deals’. Section 1337H is part of div 1 of pt 9.6A of the Act and because it is engaged in this case, s 3A of the Cross-vesting Act operates so as to make the Cross-vesting Act inapplicable.
The proceeding should be transferred
As the defendants submitted, the evidence revealed that there are many factors associated with this proceeding that more closely connect it and its subject matter to Queensland than to Victoria, and which establish that, having regard to the interests of justice, it appears that the Supreme Court of Queensland is a more appropriate forum for its determination. These matters include, but are not limited to, the matters required to be considered by the court pursuant to s 1337L of the Act.
Given the agreed position of the parties, it is sufficient to identify these matters briefly and without material elaboration. They are as follows:
(a) The Company was registered in Queensland and is and always has been a body corporate with its principal place of business and its registered office in Queensland. The plaintiff is the other body corporate primarily concerned with the proceeding, although it appears to have little or no material connection to Victoria, with its registered office being in New Zealand and its director residing there.
(b) Although not named as a party, the claims in the proceeding concern payment for visual effects related goods and services said to have been provided to the Company in Queensland, and for which it is claimed the defendants are liable to the plaintiff. As mentioned, the defendants were each administrators of the Company at different times and the first and second defendants are the deed administrators of the DOCA.
(c) The visual effects related goods and services the subject of the proceeding related to the production of a film that was produced in Queensland. The director, Mr Sparke, resides in Queensland.
(d) The first and second defendants carried out their role as administrators of the Company from Queensland, as they have and continue to in their role as deed administrators of the DOCA.
(e) The proceeding involves parties located in Queensland, including the first and second defendants and the directors of the Company. It is also said that an involved related company is Green Smoke Digital Pty Ltd, of which the second defendant is the liquidator. This company has its registered office and principal place of business recorded as Queensland addresses and its directors are located in Queensland. That is not to ignore that the third defendant, who was the administrator of the Company for 12 days, resides in Victoria, or the plaintiff, whose director resides in New Zealand. However, each of these parties understandably consented to a transfer order being made which, given the evidence before the court, would have been made in the absence of such consent in any event.
(f) Clause 12.1 of an alleged agreement sought to be relied upon by the plaintiff contains an express term that the laws of Queensland will govern, among other things, the validity and interpretation of the agreement, the performance of the parties’ obligations pursuant to the agreement, and all other causes of action arising out of or related to the agreement and/or services provided under it.
(g) The Supreme Court of Queensland has previously heard matters concerning the administration of the Company and made orders regarding the same on 1 September, 3 December, and 18 December 2020, and 4 February 2021.
(h) The books and records of the Company are said to be located in Queensland, as are other documents retained by the first and second defendants in the performance of their roles as administrators of the Company and deed administrators of the DOCA.
(i) It is clear beyond doubt that the Supreme Court of Queensland has jurisdiction to hear and determine the proceeding. Although s 1337L(c) of the Act requires consideration to be given to ‘other courts that may have jurisdiction to deal with the application’, the evidence did not reveal any matters that suggest, in the interests of justice, a court other than the Supreme Court of Queensland would be more appropriate.
(j) Consistent with the principles earlier referred to, weight is not to be given to the initial choice of forum by the plaintiff, and it need not be shown that the Supreme Court of Victoria is a clearly inappropriate forum.
(k) Given the very early stage of the proceeding, the fact that the first directions hearing has not occurred, and interlocutory orders have not yet been made, the application does not give rise to any material wasted costs or efficiency concerns, noting also that the proceeding is based upon a Commonwealth Act where State Supreme Court corporations rules also reveal material uniformity or overlap of procedural approach.
(l) The evidence did not reveal any wider interests of justice that might militate against the Supreme Court of Queensland being a more appropriate forum.
(m) Having regard to the evidence regarding the connecting factors, the Supreme Court of Queensland is what might be described as the ‘natural forum’.
(n) It is also relevant, but only as one of the matters to be weighed in the balance, that all of the parties consider the Supreme Court of Queensland to be the more appropriate forum having regard to the interests of justice, and they consent to a transfer order being made.
It will be apparent from the above that the considerations referred to in s 1337L of the Act have been taken into account. For the avoidance of doubt, I refer to the factors identified in paragraphs 15 (a)–(e), (h) and (i) above.
It was submitted that a factor weighing in favour of the transfer order is that, as things stand, the COVID-19 restrictions in Queensland are such that the trial can take place in person. In the circumstances of this case I do not regard that submission to have any relevant force. Contested commercial and corporations matters have been, and will continue to be, managed and heard in the Supreme Court of Victoria throughout all stages of the COVID-19 public health restrictions imposed in this State. The precise manner in which hearings take place is settled upon by the court after having regard to a range of relevant factors at the time a matter is to be set down for trial, at the time a matter is to be heard, and also during the course of any hearing. These factors include, but are far from limited to, any relevant public health restrictions in connection with the COVID-19 pandemic.
Given the nature of the proceeding, the early stage that it has reached, the ability of this court to deal with commercial and corporations matters even whilst the State is subject to strict COVID-19 public health measures, and the speed with which circumstances can change in any jurisdiction, the fact that the Supreme Court of Queensland may currently be able to hear commercial cases with the parties physically present in court rather than by audio visual means, is not in my view a factor weighing in favour of the Supreme Court of Queensland being a more appropriate forum. Of course, each case will always depend on its own facts.
Having regard to the above and the principles earlier referred to, I am satisfied that it appears that the interests of justice make it more appropriate for this proceeding to be determined by the Supreme Court of Queensland and that this court should exercise its discretion to transfer the proceeding to that court.
Conclusion and proposed orders
This proceeding should be transferred to the Supreme Court of Queensland pursuant to s 1337H(2) of the Act.
I propose to make orders to the following effect:
(a) Pursuant to s 1337H(2) of the Corporations Act 2001 (Cth), Supreme Court of Victoria proceeding S ECI 2021 02473 be transferred to the Supreme Court of Queensland.
(b) The costs of the proceeding in the Supreme Court of Victoria are reserved.
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