Twentieth Super Pace Nominees Pty Ltd v Australian Rail Track Corporation Ltd
[2003] VSC 112
•11 April 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
No. 2003 of 2003
F5511
In the matter of the Jurisdiction of Courts (Cross Vesting) Act 1987
BETWEEN
| TWENTIETH SUPER PACE NOMINEES PTY LTD (ACN 005 855 327) Trading as SPECIALIZED CONTAINER TRANSPORT | Plaintiff |
| v | |
| AUSTRALIAN RAIL TRACK CORPORATION LTD (ACN 081 455 754) | Defendant |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2003 | |
DATE OF JUDGMENT: | 11 April 2003 | |
CASE MAY BE CITED AS: | Twentieth Super Pace Nominees Pty Ltd v Australian Rail Track Corporation Ltd | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 112 | |
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Practice and Procedure – cross vesting – whether South Australian court is more appropriate.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M.J. Colbran QC with Mr P.J. Booth | Norton White |
| For the Defendant | Mr P.D. Santamaria SC with Mr Gary B. Hevey | Home Wilkinson & Lowry |
HIS HONOUR:
The plaintiff, Twentieth Super Pace Nominees Pty Ltd trading as Specialized Container Transport (“SCT”), operates a specialised freight forwarding, warehousing and distribution business. A significant portion of its freight is carried by rail between the east coast and the west coast and this has been the case since 1995. On 25 January 2002, a train leased by SCT suffered a derailment near Kiata in Victoria on the rail track between Melbourne and Adelaide.
On that date, as a consequence of the complicated arrangements which were put in place following the reorganisation of the national railway system in 1998, the track at Kiata was owned by the Victorian Director of Public Transport and leased to the defendant, Australian Rail Track Corporation Ltd (“ARTC”). SCT had access to the track under an agreement with ARTC which is probably the ARTC Track Access Agreement Draft No. 5. The rolling stock, including the vehicles which were derailed, were leased by SCT from Australia Southern Railroad Pty Ltd (“ASR”). Maintenance of this rolling stock was carried out by a Western Australian company, Gemco Rail Pty Ltd (“Gemco”). The train crew and locomotive were provided to SCT pursuant to a “hook and pull” agreement entered into between it and Freight Victoria Ltd. So much appears from the affidavit of Martin Alfred Svikis, the Chief Executive Officer of SCT, sworn 2 April 2003.
This proceeding was commenced by writ filed on 12 February 2003. In it SCT seeks damages of $1.4M flowing from the derailment at Kiata some twelve months earlier. The responsibility of ARTC for this is said to arise because the derailment was the consequence of deficiencies in the design, construction or maintenance of its track and the consequence of the failure of ARTC to impose speed restrictions on the use of the track.
ARTC denies this, contending that the derailment was caused by the displacement of a trailing brake beam, a matter for which SCT was responsible. ARTC has, on 6 March 2003, commenced its own proceeding against SCT, No. 319 of 2003, in the Supreme Court of South Australia seeking some $338,000 being the cost of repairing the track damaged by the derailment.
Before the court is an application brought by summons filed on 19 March 2003 on behalf of ARTC seeking an order transferring this proceeding to the Supreme Court of South Australia pursuant to s. 5 of the Jurisdiction of Courts (Cross Vesting) Act 1987.
I respectfully agree with the observations of the New South Wales Court of Appeal in James Hardie & Co Pty Ltd v Barry[1] that, in a cooperative national legislation scheme of this kind, it is essential that all courts in the Commonwealth adopt a consistent approach[2]. Accordingly, I approach this application in the manner prescribed by that court. The question which I must consider is whether it is in the interests of justice that the proceeding be transferred to the South Australian court, that is, has it been shown that the South Australian court is the more appropriate forum?
[1][2000] NSWCA 353.
[2]James Hardie & Co Pty Ltd v Barry [2000] NSWCA 353 at [5] per Spigelman CJ, at [90] per Mason P, Priestley JA concurring.
A number of matters were pressed in support of the transfer application.
First, it was put that, by cl. 21 of the Track Access Agreement, the parties had agreed that the law of the agreement is the law of South Australia and, further, they submitted to the jurisdiction of the courts of that State. This is a relevant, but by no means conclusive, factor[3].
[3]James Hardie & Co Pty Ltd v Barry [2000] NSWCA 353 at [99] per Mason P.
Second, it was suggested that, by bringing its proceeding in Victoria when it did, SCT was “stealing a march” on ARTC. It was pointed out that, pursuant to R. 6A.02 of the Rules of Court in South Australia, a prospective plaintiff must give to the prospective defendant 90 days’ notice of the proposed claim to enable the defendant to make a settlement offer. Such a notice was given by ARTC on 5 April 2002. Since that date, I was told, negotiations had taken place, but without success. The notice expired in July 2002, some six months before SCT commenced this proceeding. ARTC did not make its move until 6 March 2003, the day before the summons for directions in this proceeding was returnable. I draw two conclusions from this. First, that I am not persuaded that the chronology shows that SCT has been engaged in any tactical manoeuvre of which the court should disapprove. Second, the timing of the South Australian proceeding strongly suggests that it has been commenced to fortify the present application of ARTC. In short, I see nothing in these matters which inclines me to accede to the present application.
Third, counsel for ARTC relied upon the fact that this is one of eight derailments which have occurred involving the use by SCT of the ARTC track: two in South Australia, four in Western Australia, and two in Victoria. These incidents have provoked five proceedings instituted by ARTC in the South Australian courts. This proceeding and ARTC’s cross‑proceeding arise out of the sixth incident. Two other incidents which occurred after the present incident have caused ARTC to give Rule 6A.02 notices in March 2002 and September 2002 respectively, but no proceeding has yet been commenced. Of the five proceedings already commenced in South Australia, four are presently before the Supreme Court and are being managed in the expectation that they will be heard successively before the same judge in that court. These concern two of the Western Australian incidents, one of the South Australian incidents and one of the Victorian incidents. It was put that this proceeding might be added to these and dealt with in the same way. This, it was said, would represent an efficient method of disposition of all of the cases and an efficient use of court time. It was suggested too, that, since ARTC is located in Adelaide, the court of South Australia should be the appropriate forum dealing with disputes arising out of its track, wherever the incident might have occurred.
This may well be correct and would doubtless support a conclusion that the South Australian court is an appropriate forum for the resolution of these disputes. My task, however, is to determine whether these matters lead to the conclusion that the South Australian court is more appropriate than the Victorian court.
To my mind, this submission must involve an examination of the question whether the issues in the other proceedings are similar to those in this proceeding. I have been provided with the statements of claim in the five existing South Australian proceedings; they show the following:
· In three of them, ACTR alleges that the derailment was caused by a bearing failure and, in one case, an axle failure in SCT’s rolling stock. In the fifth, it alleges a dragging brake, as in the present case. I must assume that SCT denies this, although no pleading from that party is before me to suggest that it contends that the derailments were due to faults in the track, as in the present case. The first four proceedings concern derailments which occurred prior to 1 July 2001, at times when the maintenance of SCT’s rolling stock was carried out by ASR and its subcontractor Clyde Engineering. Both of these parties are joined as third parties to the four South Australian proceedings. In the fifth proceeding, SCT has joined its current maintenance contractor, Gemco. It would seem, therefore, that the issue in these proceedings is the condition of SCT’s rolling stock and the responsibility for any infirmity in the condition of this stock. The condition of the rolling stock is certainly one of the issues in this case, but it is difficult to see that this is an issue common to the others. The condition of the wagons in each case will have to be separately examined.
· Insofar as the five existing cases may involve allegations of the condition of the track, each of the locations of the incidents is remote from that in the present case and from each other.
· Insofar as these five cases may involve the construction of the Track Access Agreement under which SCT used the track, only the fifth proceeding concerns the agreement alleged in the present case.
I conclude from this that the only advantage which may be derived from conducting the trial of this case before a judge who has heard the other five is that the judge will have acquired a general familiarity with the principles of railway engineering and of the way derailments might occur.
Fourth, there was in evidence a copy of certain of the Rules of Court in South Australia, apparently in support of a submission that that court could efficiently and appropriately deal with this proceeding as with the others. Of this, I entertain no doubt. The question, however, is not whether it is an appropriate court but whether it is a more appropriate court. No such submission was advanced on this basis.
Fifth, it was put that the location of the legal practitioners for the parties supported the transfer. The evidence shows that the solicitors for ARTC are located in Adelaide so that it will be inconvenient for them to instruct Victorian agents. This is, I would think, an inevitable consequence of a commercial enterprise conducting business in a number of jurisdictions. On the other hand, the solicitors for SCT have no office in Adelaide so that they would suffer a like inconvenience in the event of transfer. It was faintly suggested that SCT’s selection of their present solicitors represented some ploy to disadvantage ARTC. I do not accept this. Phillips Fox in Adelaide represented SCT in the fifth earlier (Wilban) proceeding; on behalf of SCT, they accepted service of the writ in the cross-proceeding arising out of the present incident and they participated in the failed negotiation in respect of the present incident. This may only reflect an insurance interest as is suggested by the fact that this firm represents, not SCT, but its third party insurers in the first four proceedings in South Australia.
Sixth, and to my mind the most important consideration, is the location of witnesses. David William Marchant, the managing director of ARTC, disclosed that the five ARTC personnel who investigated the incident are all from Adelaide. These are likely to be witnesses, for three of them prepared the ARTC report on the incident which was before me. These persons relied upon input regarding the engineering aspects of the track from Works Infrastructure, a division of Evans Deakin Pty Ltd, a Melbourne company. Mr Svikis, says that SCT presently expects to call 13 witnesses from Melbourne and two from Sydney. Most of the repair work to the rolling stock was carried out in Melbourne so that witnesses as to this aspect of the case are located there. I conclude that the convenience of the witnesses does not point to South Australia as a more appropriate venue for the trial.
I turn now to the contentions put on behalf of SCT. First, it is said that it, as plaintiff, has chosen the Victorian court as the forum. This is a relevant factor, especially as this choice is supported by the fact that its business and many of its witnesses are located in Melbourne.
Next, it is said that the incident occurred in Victoria. This is, in the circumstances of this case, a neutral factor since the incident was about halfway between Melbourne and Adelaide and close to the South Australian border. It does, however, provide a further respectable reason for SCT to have sued in Victoria.
I put to one side as of no significance, the fact that the contracts which may fall for construction were made in Victoria and the fact that SCT’s documents are located in Melbourne.
Having weighed up these competing considerations, I am not satisfied that the Supreme Court of South Australia is a more appropriate forum for the determination of this proceeding. The application will be refused.
Having reached this conclusion, I have also decided, for the reasons mentioned in argument on 7 March 2003, that this is not a case for management in the Commercial List. I have mentioned it to the Judge in charge of the Major Torts List and he has told me that he considers that it would be appropriate for management in that list. I will therefore order that the proceeding be removed from the Commercial List and will refer the file to the Major Torts List.
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