Rogan & Ors v Rushton (QLD) Pty Ltd - [2002] VSC 375

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST

No. 2061 of 2002

PETER GEORGE ROGAN AND ORS	Plaintiff
v
RUSHTON (QLD) PTY LTD AND ORS	Defendant

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JUDGE:	WARREN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2002
DATE OF JUDGMENT:	4 September 2002
CASE MAY BE CITED AS:	Rogan and Ors v Rushton (Qld) Pty Ltd and Ors
MEDIUM NEUTRAL CITATION:	[2002] VSC 375

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CROSS-VESTING – Interests of justice – Existing related proceedings in Queensland – Jurisdiction clause.

JURISDICTION OF COURTS (CROSS-VESTING) ACT (Vic) 1987, s.5(2)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Garratt Q.C.	Madgwicks
For the Defendants	Mr J. Delany	Gadens

TABLE OF CONTENTS

The Queensland Proceedings.......................................................................................................... 1

The Victorian Proceedings............................................................................................................... 2

The Agreement................................................................................................................................... 3

The Cross-Vesting Application....................................................................................................... 3

HER HONOUR:

The plaintiffs bring this proceeding seeking declaratory relief with respect to an agreement as relating to a deed of option.

In general terms, the plaintiffs allege that they and the defendants and their related interests are parties to an agreement called the “Sale of Business Interests Agreement” entered into between those parties on about 22 October 1999 (“the agreement”).

To state matters briefly there has been a falling out leading to other litigation between those parties.

In summary, under the agreement it was resolved that if the Victorian interests were offered business in Queensland those parties would refer that business to the Queensland parties. Similarly, where Queensland parties were offered business in Victoria they would refer such business to the Victorian parties. It seems that the Queensland parties allege that the Victorian parties carried on their own work in Queensland and, also, Papua New Guinea, in breach of the terms of the agreement.

In the intervening period the plaintiffs are desirous of entering into a contract for the sale of certain naming rights the consent to which is allegedly required by the defendants. Accordingly, the plaintiffs in the present proceeding seek determination of questions of construction under the agreement as to whether the consent of the defendants is required. In consequence, the defendants in the present proceeding served a notice pursuant to Rule 13.06 of Chapter II of the Supreme Court Rules of Victoria seeking to have these proceedings cross-vested to Queensland essentially on the basis that other litigation before the Supreme Court of Queensland warrants such cross-vesting order. It is that application with which I am presently concerned. It is appropriate, therefore, to generally describe the Queensland proceedings.

The Queensland Proceedings

The defendants in the present proceeding (“Rushton”) are plaintiffs in action 10771 of 2001 in the Supreme Court of Queensland (“the first Queensland proceeding”). The proceeding was issued on 30 November 2001. Generally, Rushton alleges that Rogan breached the terms of the agreement by conducting business within Queensland that should have been referred to Rushton and its related interests.

The plaintiffs in the present proceeding (“Rogan”) are plaintiffs in action 816 of 2002 in the Supreme Court of Queensland (“the second Queensland…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] VSC 375
Decision Date: 4 September 2002

CaseChat Overview and Summary

The case of Rogan & Ors v Rushton (QLD) Pty Ltd involved the parties seeking a determination from the Supreme Court of Victoria. The nature of the dispute centred on a cross-vesting application to transfer proceedings from the Supreme Court of Queensland to the Supreme Court of Victoria. The applicants, the Rogans, argued that the interests of justice warranted such a transfer, while Rushton (QLD) Pty Ltd opposed the application on jurisdictional grounds.

The legal issues the court was required to decide included whether the Supreme Court of Victoria had jurisdiction to transfer the proceedings under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), and if the transfer was in the interests of justice. The applicants contended that the Victorian court had the necessary jurisdiction under section 5(2) of the Act, which provides for the transfer of proceedings if it is in the interests of justice and if there are related proceedings in another Australian jurisdiction. The respondents challenged the applicability of this section, arguing that the existing proceedings in Queensland were not relevant to the current application.

The court examined the provisions of section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) and concluded that the Supreme Court of Victoria did indeed have jurisdiction to transfer the proceedings. The court considered the interests of justice, taking into account the existing related proceedings in Queensland, and found that a transfer was warranted. The decision balanced the factors of efficiency, convenience, and fairness to the parties. The court determined that transferring the proceedings to Victoria was in the interests of justice, and the application was thus granted.

The final orders of the court directed that the proceedings be transferred from the Supreme Court of Queensland to the Supreme Court of Victoria. The court's decision was grounded in the interpretation of the relevant statutory provisions and the application of the interests of justice test. The transfer facilitated a more coherent and efficient resolution of the matters at hand, considering the existing related proceedings in Queensland.

Orders