Techtronic Industries Pty Ltd v Mitre 10 Australia Ltd

[2008] NSWSC 740

CITATION:	Techtronic Industries Pty Limited v Mitre 10 Australia Limited [2008] NSWSC 740
HEARING DATE(S):	11/7/08
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
EX TEMPORE JUDGMENT DATE:	11 July 2008
DECISION:	The notice of motion for transfer dismissed.
CATCHWORDS:	Jurisdiction of Courts (Cross Vesting) Act 1987 [NSW] - Checklist of factors relevant to decision - Video link technology.
LEGISLATION CITED:	Jurisdiction of Courts (Cross Vesting) Act 1987 [NSW]
CATEGORY:	Procedural and other rulings
CASES CITED:	Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Chapman v Jansen, Re (1990) 100 FLR 66 Hoddell v Hoddell Pty Ltd [1999] WASC 156 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2004] NSWSC 485
PARTIES:	Techtronic Industries Pty Limited (Plaintiff) Mitre 10 Australia Limited (Defendant)
FILE NUMBER(S):	SC 50088/08
COUNSEL:	Mr De Buse (Plaintiff) Mr R Scruby (Defendant)
SOLICITORS:	Truman Hoyle Lawyers (Plaintiff) Middletons (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 11 July 2008 ex tempore
Revised 21 July 2008

50088/08 Techtronic Industries Pty Limited v Mitre 10 Australia Limited

JUDGMENT

1 There is before the Court a notice of motion under cover of which the defendant seeks an order pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 [NSW] that the proceedings be transferred to the Supreme Court of Victoria. The application is opposed.

2 The dispute concerns monies which the plaintiff contends are due to it by the defendant for goods sold and delivered. The summons identifies the nature of the dispute: including that the goods sold and delivered have been invoiced; that the invoices have been outstanding for more than 45 days from the date upon which the payment became due pursuant to terms of trade which have been reduced to writing between the plaintiff and the defendant.

3 There is no issue but that clause 23.1 of the Purchase Agreement states that all matters arising from the sale of goods pursuant to the Purchase Agreement are “governed by and are to be construed in accordance with the laws in force in the State of the Victoria in the Commonwealth of Australia”. Clause 23.2 goes on to state that “each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria in the Commonwealth of Australia”.

4 There has been no serious issue at the bar table as to the general approach proper to be taken by the Court in determining applications such as the present. Clearly enough the relevant subsection requires the Court to decide which is the more appropriate Court to determine the proceedings brought by the plaintiff, BankinvestAG v Seabrook (1988) 14 NSWLR 711 at 714(e), 727(b). Clearly also, one Court will be more appropriate than another if in that Court, the case may be “tried more suitably for the interests of all of the parties and the ends of justice”, Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 476 applied in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 378.

5 I accept as of substance the proposition that one can take from James Hardie [at 739] what is described as “a useful list check of factors” relevant to the decision to order a transfer of category (iii) cases namely:

· Application of substantive law;

· Forensic advantage or detriment conferred by procedural law;

· The choice made by a plaintiff of a forum and the reasons for that choice;

· Substantive connection with the forum’

· Balance of convenience to the parties and witnesses;

· Convenience to the Court system.

6 In Triple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2004] NSWSC 485, I observed that the application raised the question of whether or not it is apt to speak of an onus resting upon the applicant for transfer. I observed that most recently in James Hardie, Mason P had referred to comments made by Rogers AJA with which Street CJ agreed [and Kirby P probably agreed] in Bankinvest, that it was inapt to speak of any onus resting upon the applicant for transfer. Mason P put the matters as follows:

Such a sentiment may be understandable where transfer is ordered on the Court's own motion. However, like others I find it illusive in the context of contested proceedings inter partes. If one views the exercise as one of judicial discretion according to proper principle, then it is natural to regard the applicant for particular relief as carrying at least a persuasive onus: see Bourke (at 395–396); Chapman v Jansen, Re (1990) 100 FLR 66 at 74; Dawson (at 18); Hoddell v Hoddell Pty Ltd [1999] WASC 156 at [18]; Nygh (op cit at 92). Fortunately, "onus" will seldom if ever be determinative at the end of the day.

7 Presently there is before the Court affidavit evidence from both parties, each party contending that for that party to be required to litigate in the alternative State would be inappropriate and as I have understood it, would impose an unfair burden on that party.

8 It seems reasonably plain from reading those affidavits that there will require to be called from both parties, a number of relevant witnesses and that one or other of the parties will have to be inconvenienced in that situation.

9 Although neither party have mentioned it as a factor in the course of the principled exercise of the Court’s discretion, it is now from time to time quite common for video link technology to be utilised where appropriate in order to lessen the burden of the requirements of witnesses to actually physically travel to another State. Of course in some cases where there are critical questions of credit, such an application may not be acceded to with respect to particular witnesses but the particular circumstances always require to be taken into account.

10 Mr Scruby of counsel who appears for the defendant has submitted that there is close to a line ball situation in terms of the convenience factor to which I have already referred, when one looks at the number of witnesses to be called by the respective parties, whether the suit be ultimately litigated in Victoria or in New South Wales.

11 Mr Scruby’s essential proposition has been that that which divides the parties [in terms of the requirements of the section and in particular the question of whether the case may be tried more suitably for the interests of all of the parties and the ends of justice in one or other jurisdiction] is simply the term to which I have already referred, which provides that each party irrevocably and unconditionally submits to the nonexclusive jurisdiction of the Courts of Victoria in the Commonwealth of Australia.

12 Mr Scruby’s proposition is that that particular clause is an indicator that all other things being equal, the principled exercise of the Court’s discretion is to make the cross vesting order.

13 In my view the applicant’s case has not been made out. Looking carefully at the check list to which I have already referred, it does seem to me that one way or another, the plaintiff having commenced the proceedings in the present jurisdiction and there being no serious suggestion that a Court in New South Wales is unable to fairly treat with the dispute, the suit should continue in the forum where it was commenced.

14 In my view the possibilities that one may have witnesses giving evidence by video link and the balance of convenience to parties and witnesses being as close to line ball as may be, the application should be dismissed.

15 The notice of motion for that reason is dismissed.

16 The principled exercise of the discretion as to costs is to order that the defendant pay the plaintiff’s costs of the motion.

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