Stephens v Lewis
[2002] VSC 283
•10 July 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 5235 of 2002
| TERRY NORMAN STEPHENS | Plaintiff |
| v | |
| PETER LEWIS | Defendant |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 July 2002 | |
DATE OF JUDGMENT: | 10 July 2002 | |
CASE MAY BE CITED AS: | Stephens v Lewis | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 283 | |
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APPLICATION TO TRANSFER PROCEEDING – Section 5(a) and (b)(iii) of Jurisdiction of Courts (Cross-Vesting) Act 1987 – Interests of justice favour defendant – Greater connection with South Australia.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr M. Irving |
HIS HONOUR:
This is a return of a summons brought by the defendant in the proceeding, seeking an order pursuant to s.5(2)(a) and (b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987, that the proceeding be transferred to the Supreme Court of South Australia. There is no proceeding in South Australia in relation to the matters raised in this proceeding.
The writ was issued by Terry Norman Stephens, who is acting for himself in the proceeding. The claim made is somewhat difficult to comprehend. Mr Stephens filed his writ on 21 May 2002 and his claim is expressed in this way:
"The plaintiff's claim is :- 10 millions dollars (10,000,000) for the guns that the defendant took from the plaintiff's home of which the defendant claimed the value of tens of millions of dollars. On or around the middle of December 2001, No 5. Cameron Street, Kapunda, South Australia. Nine million dollars (9,000,000) for loss of income and profits that were lost due to the defendant's actions."
It is difficult, as I have indicated, to determine what Mr Stephens’ cause of action is.
At the outset of the hearing before me this day, I raised the question with Mr Stephens and in a nutshell his complaint is that he acquired lawfully, some 200 hand-guns late last year and then entered into some arrangement or agreement with the defendant, Peter Lewis, whereby the latter took the guns and agreed that he would sell them and account to Mr Stephens for the proceeds.
As I understand, from what Mr Stephens has said to me, Mr Lewis did take the guns. He believes he sold them, and he has not accounted to him for the proceeds.
So that seems to me to be the factual basis for a cause of action, which may be in bailment, it may be in contract, or it may be in conversion. I will proceed on the assumption that those facts may disclose a cause of action. At present I doubt if the writ does.
The defendant, a Member of the South Australian Parliament, through his solicitors, filed a conditional appearance on 25 June 2002 and on 5 July 2002 filed this application to transfer the proceeding to the Supreme Court of South Australia.
The application is based upon s.5(2)(a) and (b)(iii) which requires the court, in the exercise of its discretion, to consider what is in the interests of justice as to where the proceeding ought to be determined.
Section 5(2)(a) and (b) relevantly provides:
"2. Where -
(a) a proceeding (in this sub-section referred to as a relevant proceeding) is pending in the Supreme Court (in this sub-section 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 in another State or of a Territory -
the first court shall transfer the relevant proceeding to that other Supreme Court."
The legislation has been on the Statute books now since 1987 and many applications have been made pursuant to that sub-section. Whether or not a court should grant the application to transfer a proceeding is a matter of discretion. One looks in vain in the provisions of the Act to ascertain the relevant criteria to take into account in considering such an application. Nevertheless a number of courts have considered the provisions of the Act and have identified matters which are relevant to, and are to be considered on the application.
As the application is brought by the defendant in the proceeding, he carries the onus of proof, to establish that in the exercise of the discretion, it is in the interests of justice that the proceeding be transferred to the Supreme Court, South Australia.
There was some doubt about who had the burden, by reason of what Rogers, AJA said in Bankinvest AGC v Seabrook and Others (1988) 14 NSWLR 711. In the case of Realistic Tech Consulting Pty Ltd v Westpac Banking Corporation Limited and others, an unreported decision delivered 30 September 1998, I disagreed with what his Honour said and concluded that there was an onus resting upon the applicant. In James Hardie and Co Pty Ltd v Thomas Joseph Barry at (2000) 50 NSWLR 357, the court laid to rest that controversy and held that there was a burden resting on any applicant who sought the transfer, although Mason P concluded "fortunately onus will seldom if ever be determinative at the end of the day."
Another matter which caused some controversy in the past is whether the person issuing the proceeding, in this case Mr Stephens, is entitled to have his choice of forum, accorded substantial weight. In my view the plaintiff's choice must be accorded due weight and that will depend upon the circumstances in each case.
The ultimate determinant in an application is whether in the interests of justice, the proceedings should be transferred. The defendant assumes that onus of persuading this court that it is in the interests of justice to transfer the further proceeding.
The cases have established relevant criteria to guide the court. It is unwise and indeed, impossible, to attempt to state an exhaustive list of relevant matters. Each case must be determined in accordance with its own particular facts.
Further, factors that may have been of some importance, say ten years ago, may not, because of changed circumstances, assume the same degree of importance in this day and age. By way of example use of interstate lawyers and witnesses coming from interstate.
The Bankinvest case was the first decision at appellant level to consider the provisions of the Act. The court gave guidance as to the proper approach. The court emphasised that initially the search is for what is called "the natural forum." This means "more appropriate." The expression "natural forum" was discussed by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and described at p.478 as -
"That with which the action has the most real and substantial connection."
Hence the connecting factors must be weighed by the court:
"These will include not only factors affecting convenience or expense (such as availability of witnesses) but also other factors such as the law governing the relevant transaction .. and the places where the parties respectively reside or carry on business."
Ibid p.478.
In Dawson v Baker (1994) 120 ACTR 11, Higgins J, speaking for the Full Court of the ACT, summarised the case law and listed a number of factors which are relevant. They are application of substantive law, forensic advantage or detriment conferred by procedural law, choice made by a plaintiff and the reasons for the choice, substantive connections with the forum, balance of convenience to parties and witnesses and convenience to the court system.
Those matters are relevant, but it must be emphasised, the writ is not exhaustive. The weight to be attached to each relevant matter depends upon the circumstances.
In the present application, the defendant has relied upon an affidavit sworn by Jacob Van Dissel, a solicitor in South Australia who is, in fact, the solicitor acting on behalf of the defendant in that State. He states that he has care and control of this proceeding on behalf of the defendant, who is the Honourable Ivan Peter Lewis, MP, the Speaker of the South Australian House of Assembly. In that affidavit he raises a number of matters which he submits show the connecting factors substantially favour the proceeding being heard in the State of South Australia. They can be summarised as follows.
Firstly, the defendant resides in South Australia.
Secondly, the defendant has only ever had dealings with the plaintiff in that State.
Thirdly, that in December 2001, the home of the plaintiff was 5 Cameron Street, Kapunda in the State of South Australia and that other than the current residence of the plaintiff and his wife, to the best of the defendant's knowledge, all the potential witnesses reside in South Australia and more importantly, that all of the factual matters concern events that occurred or are alleged to have occurred in South Australia.
Mr Irving, who appears on behalf of the defendant, has highlighted those facts as showing that there is a greater connection with the State of South Australia, than this State. Most of those factors must be accorded substantial weight.
As against that, I must take into account the factors that favour leaving the case in this State.
The plaintiff resides here and has instituted the proceeding in this State.
Mr Stephens appears for himself and has informed the Court that he is not in a position to engage a legal representative to act on his behalf. He also informed the Court that although he did live in South Australia for a period of time, his early years were spent in Geelong in this State. He presently resides in Torquay with his wife.
He has provided the court with a list of witnesses and for present purposes it can be said that some of his witnesses do now reside here.
Mr and Mrs Michael Stevenson, who originally lived in South Australia, now live in Torquay. Mr Stephens and his wife, who will also be a witness, also now reside in this State. He has listed some eleven witnesses on his witness list and of the balance, namely seven, one evidently lives in the State of New South Wales, but the rest live in South Australia.
Mr Stephens has sworn an affidavit in the proceeding in which he states that he has spoken to seven of the witnesses whom he does not identify and they have all made it clear they would rather give evidence here, than in South Australia. There is some suggestion of concern for their safety.
The generality of that paragraph in his affidavit raises some questions and I find it difficult to understand on what basis it can be said that some of the witnesses, especially for example Mr Ivan Venning, who is evidently a back-bencher in the South Australian Assembly could be in any fear of giving evidence in his own State. It seems to be an extraordinary proposition because if he was scared of giving evidence there, if he gives it in this State, his fear would continue once he returned to South Australia.
Mr Stephens, as I say, has sworn an affidavit. Some of it is objectionable, but insofar as the question of inconvenience of witnesses is concerned, I do not really think that in this day and age, that is of great moment. I accept that most do reside in South Australia and it would be some inconvenience for them to attend trial here. The mere fact that they have no objection to coming over here, I do not think is of any weight. In this day and age, the use of audio-visual links means the inconvenience to witnesses can be considerably lessened.
Witnesses can now be quickly transported to give evidence or give their evidence by audio-visual link so that any inconvenience is kept to a minimum. Nevertheless it is a factor and it assumes some importance in respect of expense.
In the end, I have to make up my mind where really the balance lies.
Mr Stephens also asserts from the Bar table and to some extent supported in his affidavit, that some of the witnesses are in fear, if they have to return to the State of South Australia to give evidence.
In paragraph three of his affidavit he referred to Maureen and Michael Stevenson having a fear of returning to South Australia to give evidence. This was a matter that did cause me some concern and I accordingly invited Mr Stephens to call Mr and Mrs Stevenson. They have given evidence, and I am not in any way persuaded that there is any real fear if they were to return to South Australia to give evidence in this proceeding. I really do not accept that there is any real concern. Indeed Mrs Stevenson seemed to suggest that any fear that may be there is because she has a son aged 19, who is, according to her, an undesirable person and who may cause some concern to her and her husband. I am sure that steps can be taken to make sure that nothing happens to them from that source and I am not persuaded that there is any other real source of concern, so far as them giving evidence.
In any event, they may be able to give evidence by audio/visual, depending on a number of matters, and in those circumstances, that fear is of very little importance.
Mr Stephens asserts himself that he is in some fear, but other than asserting that, I do not have any real basis for accepting that concern.
He also submitted to me that he had doubts whether he would get a fair trial in South Australia and I am not prepared to accept that assertion from the Bar table. I do not think for one moment that there would be any concern about getting a fair trial in South Australia, if indeed he has a case.
In the end, I have got to weigh up the factors. Where do the connecting factors lie in this case? In my view, the connecting factors do point to this matter being heard in South Australia. All the facts relating to the cause of action, whatever it might be, occurred over there. The bulk of the witnesses are over there and in my view, the matter should be heard in that court, if Mr Stephens indeed does have a cause of action. I propose to order that the proceeding be transferred to South Australia.
I order:
(1)That the proceeding be transferred to the Supreme Court of South Australia, pursuant s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.
I think I should reserve the costs in the circumstances, Mr Irving, should I not, or shouldn't they be costs in the cause?
The question of the costs of this application will be determined at the end of the whole proceeding, depending on who wins.
(2)That the costs of the defendant's application be costs in the cause.
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